2017 (3) TMI 1909 - HC - Central Excise

Maintainability of petition - order appealable to the Customs, Central Excise and Service Tax Appellate Tribunal (CESTAT) - whether the authorities have acted without jurisdiction in issuing a show-cause notice to the petitioner or not - SCN relates to Section 11(4) of the Central Excise Act, 1944 - time limitation - HELD THAT - The impugned order is appealable. The existence of a statutory alternative remedy to the petitioner is not a complete bar to the maintainability of a writ petition. A writ petition can be sustained in spite of existence of a statutory alternative remedy, in the event the petitioner able to substantiate but, the fundamental right of the petitioner has been infringed or the authority had acted wholly without the jurisdiction or the impugned order is such that it shocks the conscience of the Court. In the present case, the petitioner raises a point of lack of jurisdiction on the authorities in issuing the show-cause notice. The contention of lack of jurisdiction is premised upon the show-cause notice dealing with a period which is not permissible under Section 11A(4) of the Central Excise Act, 1944. The impugned show cause which deals with a period which is barred by limitation prescribed under Section 11(4) of the Act of 1944. Limitation is a point of jurisdiction - The impugned show-cause notice alleges that there were suppression of material facts and willful misstatement on the part of the petitioner. The department relies upon on such sub-section which provides that the department is entitled to serve notice upon a person to show- cause in respect of an infringement of such sub-section within five years from the relevant date. The impugned show-cause notice relies to a period of five years from relevant date. The impugned show-cause notice, therefore, is not beyond the limitation prescribed under Section 11A(4) of the Act of 1944. The petitioner had purchased the product from Oil India Limited. So far as the Oil India is concerned, the product is classified in a particular way. However, the classification so far as the Oil India is concerned, will not continue to remain valid for the end product after a manufacturing process as undertaken by the petitioner in the instant case - neither the finding in respect of the manufacturing process nor the end product has been demonstrated to be perverse. The impugned order is otherwise reasoned. The authorities had given a personal hearing to the petitioner. The findings returned in the impugned order are plausible. - The petitioner has chosen not to prefer an appeal where the scope of the adjudicatory proceeding by the Appellate Authority is different to that available to a writ proceeding. The Appellate Authority is permitted to look into the materials made available to adjudicating authority so as to reapprise same evidence and come to a different conclusion. The petition has no merits and is not dismissed.

Summary

Issues:
1. Jurisdiction of authorities in issuing show-cause notice.
2. Classification of goods post-manufacture.
3. Validity of impugned order.
4. Applicability of limitation under Section 11A(4) of the Central Excise Act, 1944.

Jurisdiction of authorities in issuing show-cause notice:
The petitioner challenges the jurisdiction of authorities in issuing a show-cause notice, contending that it relates to a period barred by limitation under Section 11A(4) of the Central Excise Act, 1944. The petitioner argues that the notice is incongruent with the classifications accepted by the Hon'ble Supreme Court, citing precedents to support this claim. However, the impugned show-cause notice alleges willful misstatement and suppression of facts, falling within the permissible period of five years under the Act. The court notes that the existence of a statutory remedy does not preclude a writ petition if fundamental rights are infringed or jurisdiction is lacking.

Classification of goods post-manufacture:
The impugned order finds that the goods purchased underwent a manufacturing process, leading to a change in composition and classification. The petitioner contests this, arguing that a chemical expert's opinion does not determine classification and that distillation alone does not warrant a new classification. The court upholds the reliance on the chemical expert's report, noting that the change post-manufacture justifies a different classification from that of the initial purchase. The classification by the original seller does not hold after subsequent manufacturing processes.

Validity of impugned order:
The court evaluates the impugned order's reasoning, finding it to be well-founded. The authorities provided a fair hearing, and the findings are deemed reasonable. The petitioner's failure to appeal is noted, highlighting the distinction between the scope of appellate and writ proceedings. The court clarifies that it cannot substitute its findings unless a perversion is demonstrated, which is absent in this case. Thus, the impugned order is upheld as reasoned and plausible.

Applicability of limitation under Section 11A(4) of the Central Excise Act, 1944:
The court addresses the relevance of limitation as a jurisdictional point under Section 11A(4) of the Act. While the petitioner argues that the notice exceeds the prescribed period, the court finds that the allegations fall within the permissible five-year timeframe. Citing a precedent recognizing limitation as a jurisdictional issue, the court emphasizes that the final order in the referenced case was not presented for consideration. Therefore, the impugned show-cause notice is deemed valid within the statutory limitations.

In conclusion, the court dismisses the writ petition, finding no merit in the petitioner's arguments. The impugned order is upheld as valid, with the authorities acting within their jurisdiction in issuing the show-cause notice and classifying the goods post-manufacture. The court emphasizes the importance of statutory limitations and the distinction between appellate and writ proceedings, affirming the reasonableness of the impugned order's findings.