2017 (10) TMI 93 - HC - Customs

100% EOU - Violation of import conditions - marble and granite - validity of SCN - it was alleged that the petitioner, a Proprietary concern has not only violated the conditions of import of marble and granite from other countries free from payment of customs duty and then instead of re-exporting the finished products manufactured out of this marble and granite blocks, since it was a 100% EOU, diverted the finished goods through its sister concerns into the domestic market - Time limitation u/s 11A of the Central Excise Act, 1944 - maintainability of petition - Held that - all the contentions which are sought to be raised by the petitioners before this Court for assailing the impugned show cause notice can very well be raised before the said Respondent No.2-concerned authority also and the said authority can also very well decide these objections and contentions in accordance with law. The mixed question of facts and law about the limitation under Section 11A of the Act and the period of 10 years covered under the show cause notice, various stages of adjudication and appellate proceedings pending before the different authorities of the Respondents-Department, their inter se effect on each other, are all complex cobweb of facts which requires adjudication by the competent authority only and this Court cannot be called upon to pronounce upon the allegations, their merit, the possible defence its reply and reasons to be assigned by the concerned authority for adjudicating the same in a particular manner - It would be premature and undesirable to cut short the said enquiry and adjudication process at this stage. Ultimately, it is the quest of truth and truth alone being the guiding star in the process of the judicial dispensation and that should be the touch stone for testing such challenges at the preliminary stages of the proceedings. This Court does not find any good ground for interference in the Show Cause Notice at this stage - petition dismissed - decided against petitioner.

Issues Involved:

1. Legality and jurisdiction of the show cause notice.
2. Overlapping of issues with previous adjudicated matters.
3. Limitation period applicability under Section 11A of the Central Excise Act, 1944.
4. Fresh material and new evidence justifying the show cause notice.
5. Principles of natural justice and fairness in adjudication process.

Detailed Analysis:

1. Legality and Jurisdiction of the Show Cause Notice:

The petitioners argued that the impugned show cause notice is ex-facie illegal and without jurisdiction as it violates the provisions of Section 11A of the Central Excise Act, 1944, which prescribes a maximum limitation period of 5 years for actions taken on allegations of misrepresentation, misstatement, fraud, or collusion by the assessee. The notice, covering a period from August 2004 to May 2014, was issued on 12.08.2015, thus exceeding the 5-year limitation period. The court, however, held that the contentions raised by the petitioners could be addressed by the adjudicating authority, and the show cause notice was not tainted with total lack of jurisdiction, thus not warranting interference under Article 226 of the Constitution of India.

2. Overlapping of Issues with Previous Adjudicated Matters:

The petitioners contended that the show cause notice overlapped with earlier six show cause notices which had resulted in adjudication orders and were pending appeals. They argued that the Principal Commissioner of Central Excise could not undertake proceedings for periods already adjudicated upon, as it would breach judicial discipline. The court found that the fresh material and new evidence indicated in the impugned show cause notice justified a fresh adjudication, and the interdependence of facts and law could not be compartmentalized period-wise. The court emphasized that the adjudicating authority could take note of previous appellate orders in the current proceedings.

3. Limitation Period Applicability under Section 11A of the Central Excise Act, 1944:

The respondents argued that the limitation of 5 years prescribed under Section 28(1) of the Customs Act, 1962, would not apply where the show cause notice is issued based on fresh Revenue Intelligence inputs. The court held that the mixed questions of facts and law about the limitation and the period covered under the show cause notice required adjudication by the competent authority. The court noted that the question of whether the extended limitation period under Section 11A(4) of the Central Excise Act, 1944, would apply, needed examination by the respondents-authority.

4. Fresh Material and New Evidence Justifying the Show Cause Notice:

The respondents emphasized that the show cause notice was based on new material and intelligence inputs indicating huge evasion of duty by the petitioner, violating both the Central Excise Act and the Customs Act. The court found that the allegations in the show cause notice were serious and based on fresh Revenue Intelligence inputs, justifying a fresh investigation and adjudication. The court held that it would be premature and undesirable to cut short the enquiry and adjudication process at this stage.

5. Principles of Natural Justice and Fairness in Adjudication Process:

The court emphasized that the petitioners had the right to defend their case and be heard in compliance with the principles of natural justice. The court noted that the respondents would supply the adverse material used against the petitioner to ensure fairness and transparency in the assessment proceedings. The court held that the right to defend and the public interest in collecting due tax and duty must be balanced, and judicial interference at this stage could result in miscarriage of justice and evasion of duty.

Conclusion:

The court dismissed the writ petitions, holding that the show cause notice did not warrant interference at this stage. The petitioners could raise their contentions before the adjudicating authority, and the complex issues of facts and law required thorough examination by the competent authority. The court emphasized the importance of the adjudication process in ensuring compliance with tax laws and the principles of natural justice.

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