2021 (8) TMI 965 - HC - Customs

Levy of penalty - Section 11AC of the Central Excise Act, 1944 - opportunity of hearing provided - HELD THAT - The order was followed by a show cause notice for the imposition of penalty dated 18.11.2020. The notice called for a reply in writing within one week as well as fixed a personal hearing on 30.11.2020 through video conference. It appears that in the meanwhile the petitioner has challenged the order of the learned single Judge. Vide letter dated 27.11.2020 the petitioner has brought to the notice of the respondent the details of filing of the Writ Appeal, requesting the Commissioner, Central Excise to keep the matter in abeyance till such time the Writ Appeal was heard. It is also not in dispute that on 30.11.2020, the petitioner as well as the second respondent had telephonically communicated with each other wherein the petitioner reiterated the request for keeping the matter in abeyance. This is not a matter that would justify intervention under Article 226 of the Constitution of India. Admittedly, due opportunity has been provided to the petitioner prior to the passing of the impugned order. The petitioner, however was more inclined to pursue the Writ Appeal and thus did not avail of the opportunity that was extended. Incidentally, the Writ Appeal has also come to be dismissed by order of the Division Bench dated 01.02.2021. Thus the petitioner is relegated to alternate remedy, if it so desires. If an appeal challenging the impugned order is filed within a period of eight (8) weeks from today, the same shall be taken on file by the respondents without reference to limitation, but ensuring compliance with all other statutory conditions. Petition dismissed.

Summary

Issues:
Challenge to order-in-original dated 04.12.2020 after previous challenge to order-in-original dated 30.04.2012. Compliance with time-bound exercise set by the learned single Judge. Request for keeping the matter in abeyance due to filing of Writ Appeal. Dismissal of Writ Appeal by Division Bench. Justification for intervention under Article 226 of the Constitution of India.

The judgment deals with a challenge to an order-in-original dated 04.12.2020, following a previous challenge to an order-in-original dated 30.04.2012. The petitioner had approached the court earlier, and the learned single Judge had set aside the penalty originally imposed under Section 11AC of the Central Excise Act, granting liberty to the Commissioner of Central Excise to issue a fresh show cause notice for the imposition of penalty after giving an opportunity to the petitioner. The time-bound exercise was to be completed within 12 weeks from the date of the order.

Subsequently, a show cause notice for the imposition of penalty was issued on 18.11.2020, calling for a reply within one week and fixing a personal hearing on 30.11.2020. The petitioner requested to keep the matter in abeyance due to filing a Writ Appeal, but the Commissioner decided to proceed with the matter as directed by the court. The petitioner did not appear on the scheduled date, leading to the passing of the impugned order based on the earlier court direction.

The court found that there was no justification for intervention under Article 226 of the Constitution of India in this matter. The petitioner had been provided with due opportunity before the impugned order was passed. Despite the opportunity, the petitioner chose to pursue the Writ Appeal, which was later dismissed by the Division Bench on 01.02.2021. Consequently, the court held that the petitioner could resort to alternate remedies by filing an appeal challenging the impugned order within eight weeks, which would be accepted by the respondents without limitation but subject to compliance with all other statutory conditions.

In conclusion, the Writ Petition challenging the order-in-original was dismissed, and the connected Miscellaneous Petition was closed without any costs being awarded. The judgment highlights the importance of exhausting alternate remedies and complying with statutory conditions in legal proceedings.