2019 (6) TMI 807 - HC - Central Excise

Lack of Jurisdiction - violation of principles of natural justice - Circular dated 01.10.2003 - HELD THAT - A perusal of the impugned order reveals that the Adjudicating Authority has held that this Hon'ble Court has left the jurisdiction issue open. A perusal of the earlier order of this Hon'ble Court and more particularly Paragraph 4 therein, makes it clear that the learned Adjudicating Authority has understood the order of this Hon'ble Court correctly and the Adjudicating Authority is correct in understanding that this Court has left the issue of jurisdiction open - the Adjudicating Authority has embarked upon the issue of jurisdiction and has relied on the latest circular dated 10.03.2017 bearing a reference 1053/02/2017-CX (F.No.96/1/2017-CX.I). In sum and substance, there are three aspects with regard to jurisdiction. First aspect is that this Hon'ble Court has left open the issue in the earlier order. Second aspect is that there is a latter circular dated 10.03.2017 which says that where the matter is remanded to an Authority, the adjudication process shall be done by the Authority in the same rank who passed the order prior to remand notwithstanding any violation in order. The third aspect is Section 12E of CE Act. In the light of there being no dispute that Additional Commissioner i.e., Respondent No.1, being superior to the Joint Commissioner and in other words, Joint Commissioner being subordinate to the Additional Commissioner, Section 12E was also followed . Owing to these aspects, the campaign of the writ petitioner with regard to jurisdiction comes to an end. Violation of principles of natural justice - Alternative remedy - HELD THAT - There is no dispute or disagreement between the two learned counsel before this Court that there is an alternate remedy to the writ petitioner by way of statutory appeal to the Commissioner (Appeals)-II, Newry Towers No.2054-I,II Avenue, Anna Nagar, Chennai 600 040. This Court is unable to convince itself in the facts and circumstances of this case that there is lack of jurisdiction on the part of first respondent and that there is violation of NJP. This is a fit case to relegate the writ petitioner to alternate remedy of filing an appeal to Commissioner (Appeals)-II, Newry Towers No.2054-I,II Avenue, Anna Nagar, Chennai 600 040 - petition disposed off.

Summary

Issues Involved:
1. Lack of jurisdiction of the adjudicating authority.
2. Violation of principles of natural justice (NJP).
3. Alternative remedy available to the petitioner.

Issue-wise Detailed Analysis:

1. Lack of Jurisdiction of the Adjudicating Authority:
The petitioner argued that the Additional Commissioner lacked jurisdiction to pass the impugned order based on a Circular dated 01.10.2003 (Circular No.752/68/2003) issued by the Central Board of Excise and Customs. According to this circular, cases involving duty amounts between ?5 lakhs and ?20 lakhs should be adjudicated by Joint Commissioners, and the duty involved in this case was ?13,84,945/-. However, the court noted that this issue had been left open in an earlier order dated 10.07.2017 in W.P.No.31200 of 2003. The adjudicating authority referred to a later circular dated 10.03.2017, which stated that in cases of de novo adjudication, the authority of the same rank who had initially passed the order should decide the case. Additionally, Section 12E of the Central Excise Act allows any Central Excise Officer to exercise the powers and discharge the duties of any subordinate officer. Therefore, the court concluded that the Additional Commissioner had jurisdiction to adjudicate the matter.

2. Violation of Principles of Natural Justice (NJP):
The petitioner claimed that the impugned order violated the principles of natural justice. The court examined paragraphs 4.1 and 5.0 of the impugned order, which recorded the submissions made by the petitioner's counsel. The court found that the submissions were considered, and therefore, the petitioner was given an opportunity to present their case. The court expressed no opinion on the merits of the findings but concluded that the principles of natural justice were not violated as the petitioner had the opportunity to make submissions.

3. Alternative Remedy Available to the Petitioner:
The court noted that there was an alternative remedy available to the petitioner by way of a statutory appeal to the Commissioner (Appeals)-II. The court referred to the Supreme Court's rulings in K.C. Mathew and Satyawati Tandon cases, which emphasized that the availability of an alternative remedy should be construed strictly, especially in cases pertaining to taxes and fiscal laws. The court acknowledged that exceptions to this rule include lack of jurisdiction and violation of NJP, but in this case, it found no lack of jurisdiction or violation of NJP. Consequently, the court directed the petitioner to avail the alternative remedy of filing an appeal and allowed the petitioner to raise all issues except the issue of jurisdiction in the appeal. The court also directed the appellate authority to consider the appeal on its merits and dispose of it expeditiously.

Conclusion:
The writ petition was disposed of, directing the petitioner to pursue the alternative remedy of filing an appeal with the Commissioner (Appeals)-II. The court clarified that the petitioner could raise all issues except the issue of jurisdiction in the appeal and that the appellate authority should consider the appeal on its merits. The court also allowed the petitioner to file an application for condonation of delay and to plead exclusion under Section 14 of the Limitation Act.