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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, GITA GOPI, JJ.
M/s Gujarat State Fertilizers And Chemicals Ltd – Appellant
Versus
Union Of India – Respondent
R/Special Civil Application No. 9261 of 2018
Decided on : 02-03-2021
Central Excise Act, 1944 - Section 35B - Adjudication order - Show Cause Notice - Breach of principles of natural justice - Limitation - Grievance on part of petitioners; firstly the officer who had heard petitioners personally, has not decided matter and instead it is Commissioner of Central Excise, who adjudicated matter and secondly, there was substantial delay in delivering judgment after having heard parties - This long delay between date of hearing and adjudication of matter, is second major grievance on part of petitioners.
Finding of the court: CESTAT has ordered in favour of petitioner during pendency of petition on issues raised on facts and law which are not only similar, but are identical - Amount of predeposit at rate of 7.5% would come to Rs.3,63,784/. Subject to deposit of this amount within a period of One Week from date of receipt of a copy of this order and filing of Appeal within a period of Four Weeks from date of receipt of order, before CESTAT, petition is not being entertained on merits while relegating parties to CESTAT, without entering into merits of Order in Original and keeping all issues open for parties to agitate before Tribunal for it to adjudicate merit in accordance with law, without being influenced by any of observations made in this matter. When we relegate parties to CESTAT; first is of period of limitation, which is otherwise of 90 days - Redeposit which is amount equal to 7.5% of duty demand to be deposited under Section 35 F of Act is concerned, this speaks of mandatory deposit of service, percentage of amount in dispute while filing Appeal before CESTAT and same has been brought on statute book
Result: Petition disposed of
ORDER :
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. The petitioners have challenged the Order in Original passed by the Commissioner of Central Excise, Vadodara. Although, this order is available on the ground of breach of principles of natural justice, petitioner approached this Court.
2. The Show Cause Notice dated 06.01.2017 involving the period from December 2011 to March 2016, has been issued upon the petitioners. According to the petitioners, the personal hearing of the matter at the time of adjudication of the Show Cause Notice, was on 17.02.2017 by the Anand Commissioner, as the proceedings were within the jurisdiction of Anand Commissioner. The officer concerned, who had heard the parties at the time of bifurcation of jurisdiction was transferred to Vadodara Jurisdiction and thus the Order in Original has been decided by the Commissioner, C.G.S.T. And Central Excise, Vadodara-1. The order, which is impugned, was passed on 15.03.2018. Thus, there are two fold grievance on the part of the petitioners; firstly the 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 and secondly, there was substantial delay in delivering the judgment after having heard the parties. This long delay between the date of hearing and adjudication of the matter, is the second major grievance on the part of the petitioners.
The period of 13 months, according to the petitioner, is unsustainable under the law and various judgments of the High Court are supportive of this challenge on the part of the petitioners. Hence, the petitioners have approached this Court with following prayers:
(B) That Your Lordships may be pleased to issue a Writ of Prohibition or any other appropriate writ, direction or order, completely and permanently prohibiting the Respondents, their servants and agents from taking any action against the Petitioner Company pursuant to OIO No.VAD-EXCUS-001-COM-32- 17-18 dated 15.03.2018 (ANNEXURE-”F');
(C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the Respondents, their servants and agents from taking any action against the Petitioner Company, including any action of coercive recovery, pursuant to OIO No.VAD-EXCUS-001-COM-32-17-18 dated 15.03.2018 thereby staying implementation and execution of this OIO No.VAD-EXCUS-001- COM-32-17-18 dated 15.03.2018;
(D) An ex-parte ad-interim relief in terms of para 21 (C) above may kindly be granted.
(E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted.”
3. On issuance of notice, the respondents appeared and filed its reply dated 20.09.2018, wherein it is contended that the petition is not maintainable, as the order impugned is available under Section 35B of the Central Excise Act, 1944 ('the Act' for short). According to the respondents, the grievance on the part of the petitioners that the order impugned is passed by some other officer, who had not heard the matter, will have no sustainability. The officer, Ms. Mallika Mahajan, who passed the Order in Original, was the officer who had given the personal hearing to the petitioners on 17.02.2017. On account of bifurcation of jurisdiction, the proceedings when were placed before the Excise Commissioner, Vaodara, she was the one, who was made the Commissioner of Central Excise, Vadodara and she delivered the order impugned, which of course, is with some gap. It is, however, further defended that the hearing was concluded on 21.08.2017. The respondent also issued a letter on 21.07.2017 calling for the informations from the petitioners and the same were furnish
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