2021 (4) TMI 693 - HC - Central Excise

Maintainability of petition - Violation of principles of natural Justice - officer who had heard the petitioners personally at Annand, has not decided the matter and instead it is the Commissioner of Central Excise, Vadodara, who adjudicated the matter - substantial delay in delivering the judgment after having heard the parties - HELD THAT - It is not in dispute that the order is appealable under Section 35 B of the Central Excise Act, 1944 which provides for appeal to the Appellate Tribunal within three months from the date on which the order sought to be appeal is communicated. The alternative efficacious remedy is available. Therefore, we are inclined to relegate the parties to the CESTAT. We could not oblivious of the averments of breach of principles of natural justice and also the emphasis on the delay in delivering the judgment and order by the adjudicating authority; however, in the interregnum, since in the case of the very petitioner, the second Show Cause Notice for the subsequent period from April 2016 to June 2017, which came against the petitioner when challenged to the CESTAT, the judgment has been delivered in favour of the petitioner on 28.02.2020. It is not in dispute that all questions regarding factual matrix as well as legal issues raised in the first Show Cause Notice and in the second Show Cause Notice are identical. The Communication dated 21.07.2017 called for from the petitioner by Superintendent, Range 1, Division- 3, CGST and Central Excise, Vadodara. The reply on the part of the petitioner dated 21.08.2017 indicates the total value of the sulphur at ₹ 74,93,182.13 and duty involved including the cess being of ₹ 9,32,088.25. Therefore, we pertinently inquired from the learned standing counsel to get the details from the respective authorities of the exact amount of the duties, which the petitioner would be required to pay as per the decision of the CESTAT - Petition disposed off.

Summary

Issues:
Challenge to Order in Original passed by Commissioner of Central Excise, Vadodara on grounds of natural justice and delay in judgment delivery.

Analysis:
1. The petitioners challenged the Order in Original passed by the Commissioner of Central Excise, Vadodara, citing a breach of natural justice principles and substantial delay in judgment delivery. They argued that the officer who initially heard the matter was transferred, and the judgment was delivered by a different officer after a significant delay of 13 months.

2. The petitioners sought various reliefs from the Court, including quashing the impugned order, prohibiting any action against them, and restraining coercive recovery. The respondents contended that the order was appealable under Section 35B of the Central Excise Act, and the delay in judgment was not as substantial as claimed by the petitioners.

3. A second Show Cause Notice was issued for a subsequent period, which was challenged separately before the Central Excise And Service Tax Appellate Tribunal (CESTAT). The CESTAT allowed the appeal on merit and limitation grounds, favoring the petitioners and questioning the sustainability of the demand in the first notice.

4. The High Court noted the challenges raised by the petitioners regarding the officer change and delay in judgment delivery. Despite acknowledging these issues, the Court observed that an alternative remedy of appeal to CESTAT was available under Section 35B of the Act, reiterating the importance of following statutory appeal procedures.

5. The Court directed the parties to approach CESTAT for adjudication, emphasizing the significance of the limitation period and mandatory pre-deposit requirement under Section 35F of the Act. The Court clarified that waiver of pre-deposit was not within its jurisdiction and highlighted the necessity of complying with statutory provisions for seeking relief from CESTAT.

6. Based on the details provided by the respondents regarding the amount of duty and pre-deposit required by CESTAT, the Court ordered the petitioners to deposit the specified amount within a week and file an appeal within four weeks. The Court disposed of the petition, allowing the parties to raise all issues before CESTAT for a comprehensive adjudication in accordance with the law.

7. The Court emphasized that its order should not be considered a precedent, particularly due to the favorable decision obtained by the petitioners from CESTAT during the pendency of the petition. The disposal of the petition did not hinder the petitioners from pursuing their remedy before the Tribunal, ensuring their right to seek redressal through the statutory appeal process.