2019 (8) TMI 714 - HC - Central Excise

Jurisdiction of Joint Commissioner to issue SCN - duty/tax involved in the present case exceeds ₹ 2 crore - Circular No. 1049/37/2016-CX dated 29-Sep-2016 - evasion of Central Excise Duty - willful suppression of unaccounted manufacture and clearance/selling activity of articles of diamond studded gold jewellery - exemption N/N. 28/2016-CE dated 26.07.2016 - Rules 108 and 109A(1) of the CGST Rules, 2017, read with Section 107 of the CGST Act, 2017. HELD THAT - By merely relying upon the circular, it cannot be said that the Joint Commissioner had no jurisdiction to issue the show-cause notice and adjudicate the same - reliance placed in the case of Supreme Court in the case of PAHWA CHEMICALS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI 2005 (2) TMI 136 - SUPREME COURT , wherein the very same issue had cropped up where it was held that the Superintendent had jurisdiction to issue showcause- notice and the Deputy Commissioner had jurisdiction to adjudicate. One another Circular No.31/05/2018-GST dated 9th February 2018 is relied upon where it was held that It has now been decided by the Board that Superintendents of Central Tax shall also be empowered to issue show cause notices and orders under section 74 of the CGST Act. Thus, in the present case, the writ-applicant has an alternative remedy of preferring a statutory appeal - writ-application is disposed of without going into the merits of the matter and with a liberty to the writ-applicant to avail of the alternative efficacious remedy of preferring an appeal before the Appellate Authority.

Summary

Issues Involved:
1. Jurisdiction of the Joint Commissioner to adjudicate the Show Cause Notice.
2. Validity of the Show Cause Notice and subsequent adjudication.
3. Availability of alternative remedy through statutory appeal.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Joint Commissioner to adjudicate the Show Cause Notice:
The writ-applicant challenged the jurisdiction of the Joint Commissioner to adjudicate the Show Cause Notice dated 08.01.2019. The applicant argued that as per Circular No.1049/37/2016-CX dated 29th September 2016, the monetary limit for adjudication by the Joint Commissioner is up to ?2 crore. Since the duty/tax involved in this case exceeds ?2 crore, only the Commissioner had the jurisdiction to issue the Show Cause Notice and pass the final order. The Court, however, referred to the Supreme Court decision in Pahwa Chemicals Pvt. Ltd. v. Commissioner of Central Excise, Delhi, which clarified that the Board's circulars are administrative directions and cannot override the statutory provisions. The Court concluded that the Joint Commissioner had the jurisdiction to issue the Show Cause Notice and adjudicate the same.

2. Validity of the Show Cause Notice and subsequent adjudication:
The writ-applicant contended that the Show Cause Notice and the subsequent adjudication by the Joint Commissioner were invalid due to lack of jurisdiction. However, the Court, relying on the Supreme Court's interpretation in Pahwa Chemicals, held that the statutory provisions under Section 11A of the Central Excise Act and Section 74 of the CGST Act empower any Central Excise Officer to issue Show Cause Notices and adjudicate them, regardless of the monetary limits prescribed by administrative circulars. Therefore, the adjudication by the Joint Commissioner was deemed valid.

3. Availability of alternative remedy through statutory appeal:
The Court noted that the writ-applicant had an alternative remedy of preferring a statutory appeal before the Commissioner (Appeal) as per Rules 108 and 109A(1) of the CGST Rules, 2017, read with Section 107 of the CGST Act, 2017. The Court emphasized that the applicant should avail of this alternative remedy, which involves the payment of the admitted amount and a pre-deposit of 10% of the disputed tax within three months from the date of the communication of the impugned order. Consequently, the Court disposed of the writ-application, granting the writ-applicant the liberty to pursue the statutory appeal.

Conclusion:
The Court upheld the jurisdiction of the Joint Commissioner to issue the Show Cause Notice and adjudicate the same, as the statutory provisions take precedence over administrative circulars. The writ-applicant was advised to avail of the alternative remedy of a statutory appeal to address any grievances regarding the impugned order.