2024 (12) TMI 1126 - HC - GST

Legality of freezing of bank account of the petitioner company by invoking the provisions of Section 11 (2) of the Excise Act - recovery with interest and penalty - HELD THAT - As per the Excise Act, the authorities are empowered to conduct special audit in terms of Section 14A and in certain circumstances in terms of Section 14AA. Section 14 of the Excise Act empowers the Central Excise Officer to summon any person to give evidence and produce documents in inquiries under this Act - As far as the present case is concerned, the Central Government Audit was being conducted as the Superintendent has communicated about the records to be made available for the said purpose. He, therefore, cannot be said to be unauthorized for issuing letters. After the audit has been conducted, it is found that the petitioner company has voluntarily deposited the excise duty and it was also noticed that payment of duty was delayed. Demand of interest and penalty - HELD THAT - Admittedly, the petitioner has been demanded interest and penalty on the excise duty, which the petitioner company has already paid on the basis of an audit report. The same was admittedly paid after due date. While this Court notes that the amount was paid voluntarily before any interest or penalty could have been imposed, show cause notice was required to be given to it to explain the delay as Section 11AA as well as Section 11AC lay down different circumstances wherein the interest would be payable. If the petitioner would have been given an opportunity of hearing, the authorities would have reached to a conclusion whether the duty paid by the petitioner can be said to be delayed or not firstly and secondly whether the same was voluntarily deposited and the benefit was available to it. As per the written submissions filed by the petitioner company, it is apparent that the financial implications identified in audit were required to be placed before the petitioner company and it should have been given an opportunity of hearing and put up its defence whereafter a speaking order was required to be passed. If such an order would have been passed, the petitioner would also have an opportunity to file an appeal against the same. The action of demanding the amount from the petitioner and imposing penalty is not sustainable in law. The order dated 02.05.2024 and summons dated 17.09.2024 are quashed and set aside - Petition allowed.

Issues Involved:

1. Legality of the recovery process initiated based on the CAG Audit Report.
2. Jurisdiction and authority of the Superintendent in issuing notices and freezing bank accounts.
3. Compliance with the principles of natural justice, specifically the requirement of issuing a show cause notice.
4. Applicability of interest and penalty provisions under the Excise Act.
5. Impact of the COVID-19 pandemic on the petitioner's ability to comply with excise duty payment timelines.

Detailed Analysis:

1. Legality of the Recovery Process:

The petitioner company challenged the recovery process initiated by the authorities, arguing that it was based solely on the CAG Audit Report for the period 2018-2019. The petitioner contended that the provisions of Section 11A(1) and 11A(14) of the Excise Act, which outline the procedure for recovery of interest, were ignored. The audit report should only serve as a basis for assessment, and recovery proceedings cannot be initiated without following the due process established under the Excise Act and Rules. The court agreed with this argument, noting that the audit findings alone do not justify immediate recovery without proper assessment and procedural compliance.

2. Jurisdiction and Authority of the Superintendent:

The petitioner argued that the Superintendent lacked the authority to issue notices and freeze the company's bank account. The court examined the powers conferred under the Excise Act, specifically Section 11 (2), which was invoked to freeze the bank account. While the Superintendent is authorized to conduct audits and issue letters for record requisition, the court found that the subsequent actions taken, such as freezing the bank account without proper adjudication, exceeded the Superintendent's jurisdiction.

3. Compliance with Principles of Natural Justice:

A significant issue was the failure to issue a show cause notice to the petitioner before initiating recovery proceedings. The court emphasized that the principles of natural justice, particularly the right to be heard (audi alteram partem), are inherent in the recovery process under the Excise Act. The Supreme Court's precedent in Madhumilan Syntex Private Limited was cited, which mandates the issuance of a show cause notice before any demand for duty, interest, or penalty is made. The court concluded that the absence of a show cause notice rendered the recovery proceedings invalid.

4. Applicability of Interest and Penalty Provisions:

The court analyzed Sections 11AA and 11AC of the Excise Act, which govern the imposition of interest and penalties on delayed duty payments. It was noted that interest is generally payable on delayed payments, but a show cause notice is required for imposing penalties. The petitioner had voluntarily paid the duty, albeit late, and argued that the delay was due to server issues during the COVID-19 pandemic. The court found that the petitioner should have been given an opportunity to explain the delay and potentially avoid penalties, as provided under Section 11AC(1)(a) of the Excise Act.

5. Impact of the COVID-19 Pandemic:

The petitioner cited the COVID-19 pandemic as a reason for the delayed payment of excise duty, arguing that server issues prevented timely compliance. The court acknowledged this argument, noting that the pandemic had disrupted normal business operations and could justify delays in compliance. The court emphasized the need for authorities to consider such exceptional circumstances before imposing penalties.

Conclusion:

The court quashed the orders demanding interest and penalty from the petitioner and set aside the summons issued. The writ petition was allowed, and the court underscored the necessity of adhering to procedural requirements and principles of natural justice in recovery proceedings under the Excise Act. All pending applications were disposed of, and no costs were imposed.

← Previous