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TMI Blog2022 (5) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity of personal hearing through virtual mode as well as physical mode. In response to personal hearing scheduled on 17.12.2020, the petitioner requested adjournment on the ground that the authorized person was suffering from COVID-19 and requested that personal hearing may be given on some other day - Finally, personal hearing in the case was held on 08.01.2021 when the noticee appeared and was represented by Sh. Mukesh Kasera, Manager (Finance) and Sh. Rahul Lakhwani, Authorized representatives. In view of the categorical finding in the Order-in-Original it clearly transpires that principle of natural justice has been duly followed. Jurisdiction - powers of High Court - HELD THAT:- After going through the judgment in M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH ORS. [ 2021 (4) TMI 837 - SUPREME COURT] , it appears that the law on the issue of maintainability has been reiterated in this case and the Hon ble Apex Court has categorically held that exceptions to rule of alternative remedy arise where the writ petition has been filed for the enforcement of fundamental right or there has been a violation of principle of natural justice or the order or proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner, to Impugned Order-in-Original dated 12.04.2021 (Annexure-6/1). OR (iii) For issuance of an appropriate Writ(s), Order(s), and/or direction(s) declaring that the very assumption of jurisdiction by the Respondent No.3 to issue Impugned SCN dated 24.07.2019 (Annexure-3) and act of Respondent No.2 of continuing proceedings thereto and passing of Impugned Order dated 12.04.2021 (Annexure-6/1) is bad in law, arbitrary and void-abinitio and hence, the entire proceedings are a nullity and accordingly quash the Impugned Order dated 12.04.2021 (Annexure-6/1); (iv) For issuance of an appropriate Writ (s), Order (s), and/or direction(s) as Your Lordships may deem fit and proper in the facts and circumstances of this case in the interest of justice; (v) For quashing and setting aside the purported letter contained in F.No.V (30) 04/Misc./Tech/BOK-II/2020-21/523 dated 22.06.2021 (Annexure-12) issued by the Deputy Commissioner, CGST C. EX, Division-II, Bokaro, which was signed by the Deputy Commissioner on 22.06.2021, seal of the Department was made on 30.07.2021 and served upon the representative of the petitioner on 03.08.2021 at 3.00 PM, inter alia, denying the req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of 5 months was further extendable by the jurisdictional commissioner. The petitioner duly applied to the Department of Women Child development and Social Security, for issuance of the certificate mentioned above. However, the State Government issued the said certificate only after final payment of bills thereby the first consolidate certificate was issued for a period of July 2014 to November, 2015. Similarly, the certifications for the period thereafter up to June 2017 was issued in due course of time. 4. A service tax audit was carried out by Bokaro Service Tax Dvision/Bokaro Range-III (Service tax) for the Bokaro plant of the petitioner wherein all the available documents and records were verified along with original copies of available certificates; and a report for nonpayment of Central Excise Duty on manufacturing of Energy Dense Fortified Product (Micronutrient Food) amounting to Rs. 37,49,70,757/- for the period July, 2014 to March, 2016 was raised. As per the said audit report, the benefit under the Exemption Notification was not available to the petitioner as the certification from the concerned State Government authority, as mentioned in the conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.2 without considering the submissions of the petitioner including the specific request for extension of time for submission of certificate as per the condition mentioned under the Exemption Notification. 6. Mr. Biren Poddar, learned senior counsel for the petitioner-firm submits that in term of the Exemption Notification, the goods manufactured by the petitioner were exempted from Central Excise Duty subject to submission of the certificate from an authority not below the rank of Respondent No.1. In reply to the show cause notice, the petitioner requested the respondent no.2, who is a superior to the respondent no.1 to consider the reply as a request/application for extension of time for submission of certificate as per condition mentioned in the Exemption Notification and allow the exemption benefit. However, the Respondent No.2, did not consider the request of the petitioner and passed the Impugned Order merely by holding that the request for extension of time for submission of certificates have not been taken from Respondent No.1. He further submits that thereafter merely to fulfill the procedural/technical requirements in terms of the observations made in the Impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner. Mr. Poddar learned senior counsel further contended that there was sufficient compliance with respect to submitting the exemption certificate. The audit was conducted from 18.04.2017 to 20.04.2017 and during the course of audit, the exemption certificate issued by the Directorate of Social Welfare, letters submitted for issuance of certificate to the Directorate by the petitioner were furnished to the Audit Team from July, 2014 to November, 2015. Thereafter, the exemption certificate from December, 2015 to August, 2016 was also furnished to the Audit Circle vide letter dated 21.07.2017. Thereafter, the Jurisdictional Superintendent, Central Excise sought figures of production and supplies vide email dated 16.05.2019. The petitioner, while submitting the respective figures to the Jurisdictional Superintendent, Bokaro submitted 03 exemption certificates issued by the Directorate of Social Welfare from December, 2015 to August, 2016, December, 2016 to March, 2017 and April, 2017 to May, 2017 vide letter dated 23.05.2019 with email and speed post. Thus, the Exemption Certificates were submitted by the petitioner before Audit Circle, Bokaro and Jurisdictional Superintendent ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that they are not of the essence of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance with those factors which are considered as essential. He concluded his argument by submitting that the writ application is maintainable as there is gross violation of natural justice. It is well settled that a writ can be entertained by the High Court under Article 226 of the Constitution of India if there is gross violation of natural justice. Even on merits, the petitioner is having a good case as non-submission of certificate was not the fault of the petitioner; rather it is the concerned government official who did not provided the required certificate. 7. Mr. Amit Kumar, learned counsel for the respondents raised preliminary objection with regard to maintainability of the instant writ application and contended that the Order-in-Original No. 09/ Central Excise/Pr. Commr/2021 dated 12.04.2021 has already been passed by the respondent No.2 after following the principles of natural justice and this p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 2017-18 (upto June, 2017) by invoking extended period of limitation, on the allegation of evasion of payment of central excise duty amounting to Rs. 70,86,86,088/- due to non-compliance of the conditions as stipulated in Notification dated 17.03.2012 (Annxure-1). The petitioner filed a preliminary objection on 08.08.2019 and finally in January, 2021 he filed show cause reply and thereafter, the Order-in-Original dated 12.04.2021 was passed. 9. It transpires that though it has been claimed by the petitioner-Firm that he had requested respondent No.1 regarding extension of time with respect to submission of certificate of exemption dated 17.03.2012; however, from record it appears that a formal request letter was sent vide letter dated 07.06.2021 which is after passing of the Order-in-Original dated 12.04.2021. Admittedly in the instant case, the Order-in-Original has been passed and the thrust of argument of this petitioner is that principle of natural justice has not been complied in this case, and as such, the instant writ application is maintainable. However, after going through the Order-in-Original it clearly transpires that the Adjudicating Authority has held at page 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. 27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. 27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with. 28. These principles have been consistently upheld by this Court in Chand Ratan v. Durga Prasad, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Rajasthan SEB v. Union of India among other decisions. After going through the aforesaid judgment, it appears that the law on the issue of maintainability has been reiterated in this case and the Hon ble Apex Court has c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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