2018 (12) TMI 1110 - HC - Central Excise

Jurisdiction to raise demand u/s 11A central excise - extended period of limitation - petitioner availed the benefit of the Duty Free Credit Entitlement (DFCE) scheme. - the petitioner claimed to be a manufacturer and obtained registration for the same, the adjudicating authority found the petitioner to be a trader - It is the claim of the petitioner that, No liability can be fastened upon the petitioner under the provisions of the Act 1944. - Held that - The department cannot be faulted when it invoked provisions of Section 11A(4)(d) of the Act of 1944 in issuing the impugned show-cause notice and adjudicating thereon. There is no substance in the contention with regard to the limitation as put forward by the petitioner. Therefore, the authorities cannot be said to be acting without jurisdiction on the ground that, the claim made under the impugned show-cause notice stands barred by limitation as prescribed under the Act of 1944. The proceedings are within the period of limitation under the provisions of Section 11A(4) of the Act of 1944. There is no evidence placed on record to suggest otherwise - Petition dismissed.

Summary

Issues:
Challenge to show-cause cum demand notice and Order in Original based on lack of jurisdiction, petitioner's contention of being a manufacturer, denial of right to cross-examine witnesses, reliance on judgments, suppression of facts, limitation period under Section 11A(4) of the Central Excise Act, 1944, principles of natural justice, appealability of impugned order, interference under Article 226.

Analysis:
The petitioner challenges the show-cause cum demand notice and Order in Original, alleging lack of jurisdiction due to the notice being beyond the one-year limitation period under Section 11A of the Central Excise Act, 1944. The petitioner claims to be a manufacturer but was deemed a trader by the adjudicating authority, leading to jurisdictional issues. The petitioner argues that the impugned order failed to address key contentions and judgments raised, violating principles of natural justice. However, the respondent asserts that the notice was issued within the extended five-year period under Section 11A(4) based on suppression of facts, supported by evidence from a raid on the petitioner's premises. The respondent contends that the impugned order adequately considered all aspects, including limitations, cross-examination rights, and transporter statements.

The petitioner raised concerns regarding the denial of the right to cross-examine witnesses and the reliance on transporter statements, citing relevant judgments. The impugned order, however, addressed these points, finding the proceedings within the limitation period and justifying the reliance on evidence presented. The petitioner's argument that the Managing Director's statements were retracted during cross-examination was dismissed, as substantial evidence indicated fraudulent practices by the petitioner in availing benefits under the DFCE scheme. The impugned order's analysis of evidence and materials was deemed appropriate, with reasons provided for the findings.

Regarding the principles of natural justice, the impugned order was found to have considered all relevant materials, even though specific judgments cited by the petitioner were not individually addressed. The court emphasized that not every judgment raised in a proceeding must be explicitly discussed if they are irrelevant to the case at hand. The petitioner's decision not to appeal the impugned order, coupled with the lack of substantial grounds for interference under Article 226, led to the dismissal of the writ petition. The court clarified that it cannot act as an appellate authority but may intervene if there are violations of natural justice or constitutional provisions, which were not established in this case.

In conclusion, the court dismissed the writ petition, emphasizing the importance of adhering to statutory appeal processes and the limited scope of interference under Article 226 unless fundamental rights are infringed. No costs were awarded in this matter.