2023 (6) TMI 1318 - HC - Central Excise

Recovery of refund made erroneously - Jurisdiction - proper officer to issue SCN - HELD THAT - The show cause notice dated 17.04.2023 set aside making it clear that proper officer shall hold consultation with the petitioner if he intends to issue fresh show cause notice i.e., pre show cause notice consultation. All contentions are kept open. Petition allowed.

Summary

Issues involved: Challenge to show cause notice u/s 04/2023-24 dated 17.04.2023 issued by Assistant Commissioner of Central Tax, Central Excise & Service Tax, Medchal Division, Medchal Commissionerate.

The writ petition challenged the show cause notice issued by the Assistant Commissioner of Central Tax, Central Excise & Service Tax, Medchal Division, Medchal Commissionerate, on various grounds. The respondents conceded that the Assistant Commissioner was not the proper officer as per circular No.31/05/2018-GST, which clarified that the proper officer should be the Additional or Joint Commissioner of Central Tax. They agreed to set aside the show cause notice for reissuance by the proper officer.

The petitioner argued that the show cause notice sought to recover a refund granted earlier, alleging it was erroneous. The petitioner's refund claim had been affirmed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), and the order had attained finality. The petitioner urged that the recovery should not proceed due to the finality of the CESTAT order and principles of judicial discipline.

After hearing both parties, the court set aside the show cause notice dated 17.04.2023, emphasizing that the proper officer must consult with the petitioner before issuing a fresh show cause notice, ensuring pre-show cause notice consultation. The court allowed the writ petition, closing any pending miscellaneous applications without costs.