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TMI Blog2019 (6) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... . First aspect is that this Hon ble Court has left open the issue in the earlier order. Second aspect is that there is a latter circular dated 10.03.2017 which says that where the matter is remanded to an Authority, the adjudication process shall be done by the Authority in the same rank who passed the order prior to remand notwithstanding any violation in order. The third aspect is Section 12E of CE Act. In the light of there being no dispute that Additional Commissioner i.e., Respondent No.1, being superior to the Joint Commissioner and in other words, Joint Commissioner being subordinate to the Additional Commissioner, Section 12E was also followed . Owing to these aspects, the campaign of the writ petitioner with regard to jurisdiction comes to an end. Violation of principles of natural justice - Alternative remedy - HELD THAT:- There is no dispute or disagreement between the two learned counsel before this Court that there is an alternate remedy to the writ petitioner by way of statutory appeal to the Commissioner (Appeals)-II, Newry Towers No.2054-I,II Avenue, Anna Nagar, Chennai 600 040. This Court is unable to convince itself in the facts and circumstances of this case that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified under 19.32 as per relevant trade notice and it was also contended that under the proviso to Section 11A of 'Central Excise Act, 1944' ('CE Act' for brevity), the extended period cannot be invoked, as according to the petitioner, the Department was aware of the activities of the petitioner. 6. In the aforesaid backdrop of SCN and replies to the SCN adjudication proceeded. Adjudication proceedings culminated in an order dated 31.08.2003 made by the first respondent. This was assailed by the writ petitioner by way of an earlier writ petition being W.P.No.31200 of 2003, which came to be disposed of by this Hon'ble Court on 10.07.2017. 7. Considering the nature of submissions made and the grounds on which the instant writ petition is predicated, this Court deems it appropriate to extract the entire order dated 10.07.2017 made by another Hon'ble Judge of this Court in W.P.No.31200 of 2003. The same reads as follows: 'Heard Thiru.M.P.Senthil Kumar, learned counsel for the petitioner and Thiru.A.P.Srinivas, Senior Central Government Standing Counsel, for the respondents. 2. The petitioner has filed this Writ Petition challenging the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Pursuant to the aforesaid order, post remand by this Hon'ble Court, the matter was taken up by the first respondent. First respondent adjudicated upon the matter afresh and passed an order dated 28.02.2019 bearing reference C.S/C.No.V/15/40/2018- CS Adj (hereinafter 'impugned order' for brevity), which has now been called in question. 9. Learned counsel for writ petitioner, submits that the impugned order is being assailed on two main grounds and they are: a) Lack of jurisdiction on the part of first respondent who passed the same; and b) Violation of 'natural justice principles' ('NJP' for brevity). 10. This Court embarks upon the exercise of examining both these grounds. 11. With regard to lack of jurisdiction on the part of first respondent, who passed the impugned order, learned counsel for petitioner drew the attention of this Court to a Circular dated 01.10.2003 being Circular No.752/68/2003 issued by the Central Board of Excise and Customs, New Delhi, i.e., second respondent before this Court. Taking this Court through the said circular, learned counsel drew the attention of this Court to Paragraph 2.1 and Sub-paragraph A of the said ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has left the issue of jurisdiction open. Therefore, the Adjudicating Authority has embarked upon the issue of jurisdiction and has relied on the latest circular dated 10.03.2017 bearing a reference 1053/02/2017-CX (F.No.96/1/2017-CX.I). Relevant portion of this circular being Paragraph 24 has been extracted in the impugned order and the same reads as follows: ''24. De novo or Adjudication remanded by appellate authority: In cases of de novo adjudication in pursuance of the order of Appellate Authority, such cases should be decided by the adjudicating authority of the same rank who had passed the order which was in appeal before the Appellate Authority, notwithstanding the enhancement of the power of adjudication of the officers...................'' 14. In addition to this, Mr.V.Sundareswaran, learned Revenue counsel also drew the attention of this Court to Section 12E of the Central Excise Act wherein it has been held that any Central Excise Officer may exercise powers and discharge the duties conferred or imposed on any other Central Excise Officer, who is subordinate to him. It is also submitted that this provision has been noticed by the Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriate authority. She also requested to transfer the case to the officer holding jurisdiction and to post for hearing of the case. FINDINGS 5.1. I have gone through the records of the case and the written submissions made by the noticee. The issue for determination before me are as follows: (i) whether the value of bought out items cleared as traded goods has to be added to the value of the manufactured goods. (ii) whether the impugned product is classifiable under CH 85.37 or 90.32 of Central Excise Tariff and (iii) whether the extended period under proviso to Section 11A is invokable.' 19. Learned counsel for petitioner submitted that no written submissions were filed by the writ petitioner. However, it is not in dispute that the submissions were made. Therefore, it cannot be gainsaid by the writ petitioner that no opportunity has been given to the writ petitioner and therefore, principles of NJP have been violated. 20. This takes us to the alternative remedy aspect. There is no dispute or disagreement between the two learned counsel before this Court that there is an alternate remedy to the writ petitioner by way of statutory appeal to the Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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