Update No 196 on transfer of case to call book

The principle of judicial discipline requires that the decisions pronounced by higher authorities should be unreservedly followed by the subordinate authorities. However, we all know that the judicial mechanism consumes humongous time and many cases are pending for years before High Courts and Supreme Court. Consequently, the department tends to transfer the case to call book due to pendency of final outcome of the decision. Time and again, the Government has issued various Circulars guiding the revenue authorities regarding transfer of case to call book to ensure proper adjudication of cases but it is observed that often the cases are kept in abeyance for substantially longer period of time such as 8 to 13 years. One such issue came before Hon’ble Rajasthan High Court in the case of M/S P G FOILS LIMITED wherein the transferred case was suddenly revived after 8-13 years. The decision imparted in this case is the subject matter of discussion of our present update. The petitioner is engaged in manufacturing of aluminium foils and poly laminated aluminium foils. The writ petition is filed by various petitioners challenging the show cause notices issued to them long before and revived. The original show cause notice pertains to the demand of excise duty which was issued between 2007 to 2012. These notices were consigned to call book on account of pendency of similar controversy before Apex Court, which are now revived and further challenged by the petitioner on the grounds that no intimation was given regarding transfer of case to the call book. Furthermore, it was argued that the revival of proceedings after a gross and unexplained delay for a period of 8-13 years is highly arbitrary and untenable in law. The respondent even never furnished any details to petitioner regarding transfer of case to the call book. Reliance was placed Instructions contained in Letter F.No. 101/2/92-CX.2 dated 04.03.1992, Circular No. 53/90-CX.3 dated 06.09.1990, Circular dated 30.03.1998, Circular dated 28.05.2003. The petitioner argued that since no intimation was given regarding transfer of case, they were not able to defend the case. Reference was drawn to various Judicial Pronouncements: CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??5 • PARLE INTERNATIONAL LIMITED VS. UNION OF INDIA AND ORS. [2021 (375) ELT 633 (BOM.)] • RAYMOND LTD. VS. UNION OF INDIA [2019 (368) ELT 481 (BOM.)] • SIDDHI VINAYAK SYNTEX PVT. LTD. VS. UNION OF INDIA AND ORS. [2017 (352) ELT 455 (GUJ.)] The counsel of the revenue opposed the submissions of petitioner and argued that proper procedure and instructions of CBIC were duly followed and complied with. The Court analysed and admitted the facts of the case that the notices pertained to the period from 2007 to 2012. The details of transfer of notices to call book were never communicated to the concerned petitioners. Further, as soon as the petitioner received the revived notices, they requested for Virtual Hearing of the same. However, no attention was paid by the respondents to their request. Further it was held that before transferring the case to call book prior approval commissioner is to be taken, which was also violated. Therefore, it was held that the entire proceedings were undertaken in callous manner without following proper procedure as mentioned in the Circular. Reliance was placed on the decision of Apex Court in the case of M/S A.R. ANTULAY V/S R.S. NAYAK & ANR [AIR 1988 SC 1531] wherein it was held that owing to delay, memory tends to fade and the evidence related to the case tend to disappear. Further, it was stated that since no intimation was given to petitioner regarding transfer of case, they would have thought that the proceedings are dropped and hence, there is no requirement of the petitioner to preserve evidence related to the case. Therefore, it was held that revival of proceedings after a gross inordinate and unexpected delay is unjustified. The court stated that pendency of cases cannot be a valid reason of transferring the cases to call book without prior intimation to the assessee. The above decision is a welcoming decision by the business community. It is well settled fact that adjudication should be completed within a reasonable period of time as it tends to dilute the relevance of the proceedings. Unfortunately, the revenue authorities fail to recognise various favourable judicial pronouncements on the issue. It is high time that departmental authorities should follow the principle CA. PRADEEP JAIN ??www.capradeepjain.com??pradeep@capradeepjain.com??6 of judicial discipline so as to avoid unwanted litigations.

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Update No 196 on transfer of case to call book

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