2018 (11) TMI 916 - HC - Central Excise

Recovery of duty from successor industry - Condonation of delay in filing appeal - appeal was preferred after condonable period of delay beyond which the appellate authority has no power to condone the delay - opportunity of being heard not provided - principles of natural justice - Held that - It is settled that the High Court can exercise extraordinary writ jurisdiction under Article 226 of the Constitution of India if the petitioner has been subjected to gross injustice and the order adverse to him has been passed in flagrant violation of principles of natural justice and that procedure adopted was either unfair or dehors the provisions of law. In the case at hand, the Revenue has unilaterally assumed that the appellant is successor industry of M/s Gyan Industry without affording any opportunity of hearing to the appellant. The sale deed in favour of the appellant describes the property purchased by it to be debris of old go-down tin shed situated at industrial area, Bhilai. It nowhere recites that the appellant has either purchased the whole industry or plant and machinery owned by M/s Gyan Industry. Before issuing the demand notice, the appellant was not called upon to satisfy the department that he is not successor company of the M/s Gyan Industry. By issuance of demand notice for deposit of ₹ 22,19,135/-, the appellant has been condemned unheard. The term successor in interest is not merely a term but it has definite connotations depending upon the nature of provisions defining the said term and the liability of a person who is successor in interest to pay the Government or other dues within statutory scheme. The issue needs to be adjudicated by the authority before issuance of demand notice. However, the appellant having not been heard, there is flagrant violation of principles of natural justice and the appellant cannot be left without any remedy in law merely because he has purchased some debris of old go-down tin shed situated at industrial area, Bhilai where at some prior point of time an industry was operational. Matter remitted back to the adjudicating authority, who has issued the demand notice with a direction to provide opportunity of hearing to the appellant and pass reasoned order - appeal allowed by way of remand.

Issues Involved:
1. Legality of the dismissal of the appellant's writ petition by the learned Single Judge.
2. Validity of the order passed by the Customs, Excise and Service Tax Appellate Tribunal regarding the rejection of the appeal due to limitation.
3. Determination of whether the appellant is the successor industry of M/s Gyan Industry.
4. Applicability of principles of natural justice and whether the appellant was given an opportunity of hearing.
5. Jurisdiction of the High Court under Article 226 of the Constitution in cases involving statutory limitations.

Issue-wise Detailed Analysis:

1. Legality of the Dismissal of the Appellant's Writ Petition:
The appellant challenged the order of the learned Single Judge, which dismissed the writ petition and affirmed the Tribunal's decision. The Tribunal had upheld the rejection of the appellant's appeal by the Commissioner (Appeals) due to it being barred by limitation. The appellant argued that the dismissal was arbitrary and opposed to the principles of natural justice, as he was not heard by the adjudicating authority before being held liable for the dues of M/s Gyan Industries.

2. Validity of the Tribunal's Order Regarding Limitation:
The Tribunal's order dated 1.7.2016, which upheld the Commissioner (Appeals)'s decision to reject the appeal as time-barred, was based on the statutory provisions under Section 35 of the Central Excise Act, 1944. The Supreme Court, in Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others, held that the appellate authority has no power to condone delays beyond the additional 30 days provided under the Act. This legal precedent was crucial in affirming the Tribunal's decision.

3. Determination of Successor Industry:
The appellant contended that he was not the successor industry of M/s Gyan Industries, having only purchased debris of an old go-down tin shed and not the entire business or its assets. The Revenue, however, assumed the appellant to be the successor without providing an opportunity for a hearing. The case references, including Central Inland Water Transport Corporation Ltd. Vs. Their Workmen and Rana Girders Limited Vs. Union of India, emphasized that mere acquisition of property does not automatically make one a successor in interest liable for the previous owner's dues.

4. Applicability of Principles of Natural Justice:
The appellant argued that the Central Excise Department's actions violated principles of natural justice by not affording him an opportunity to present his case before issuing the demand notice. The High Court recognized that the appellant was condemned unheard, which is a significant breach of natural justice principles. The Full Bench decision in Panoli Intermediate (India) Pvt. Ltd. Vs. Union of India & Others highlighted that the High Court could exercise its jurisdiction under Article 226 in cases of grave injustice or procedural unfairness.

5. Jurisdiction of the High Court under Article 226:
The High Court's jurisdiction under Article 226 of the Constitution was affirmed to be applicable in extraordinary circumstances where statutory limitations result in gross injustice. The Full Bench in Panoli Intermediate (India) Pvt. Ltd. clarified that while the statutory period for filing appeals cannot be extended beyond the prescribed limit, the High Court can intervene under Article 226 if there is a flagrant violation of natural justice or if the statutory remedy is ineffective.

Conclusion:
The High Court concluded that the appellant was not provided a fair hearing before being held liable for the dues of M/s Gyan Industries, constituting a violation of natural justice. The demand notices were quashed, and the matter was remitted back to the adjudicating authority to provide the appellant with an opportunity of hearing and to pass a reasoned order on whether the appellant is indeed the successor industry of M/s Gyan Industry. The appeal was allowed, emphasizing the necessity of adhering to principles of natural justice and proper legal procedures.

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