Court revives proceedings from show cause notice, sets aside Order-in-Original, deems writ petition maintainable

The court allowed the writ petition, setting aside the Order-in-Original. The proceedings from the show cause notice dated 2-5-2017 were revived and transferred to the Additional Director General for adjudication, as per Clause 11.2 of the Master Circular. The court deemed the writ petition maintainable due to jurisdictional issues, rejecting the respondents' reliance on a rescinded circular. The Stay Application was disposed of accordingly.

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Issues Involved:
1. Attractability of Clause 11.2 of Master Circular No. 1053/2/2017-CX.
2. Maintainability of the writ petition due to the availability of an alternative efficacious remedy.
3. Jurisdiction of the adjudicating authority.

Detailed Analysis:

1. Attractability of Clause 11.2 of Master Circular No. 1053/2/2017-CX:
The petitioners challenged the Order-in-Original dated 30-11-2017, arguing that Clause 11.2 of the Master Circular should apply. This clause states that in cases involving different show cause notices on the same issue answerable to different adjudicating authorities, the notice involving the highest amount of duty should be adjudicated by the competent authority. The court found substantial similarities between the two show cause notices dated 1-3-2016 and 2-5-2017, indicating that both were based on common evidence. The first notice involved a higher amount of duty, thus, according to Clause 11.2, the adjudication should be handled by the Additional Director General, Directorate General of Central Excise Intelligence, Delhi Zonal Unit, New Delhi.

2. Maintainability of the Writ Petition:
The respondents argued that the petitioners had an alternative remedy by way of appeal under Section 35B of the Central Excise Act, 1944. However, the court held that the objection raised by the petitioners touched upon the jurisdiction of the Assessing Authority, making the writ petition maintainable. The court noted that the Circular dated 3-3-2015, which the respondents relied upon, was rescinded by the Master Circular, making their reliance on it untenable.

3. Jurisdiction of the Adjudicating Authority:
The court found that the subsequent show cause notice dated 2-5-2017 was issued based on the investigation referred to in the earlier notice dated 1-3-2016. Given the common evidence and the potential for divergent views by different adjudicating authorities, the court held that the case involving the highest amount of duty should be adjudicated by the competent authority as per Clause 11.2 of the Master Circular. The court rejected the respondents' argument that the Commissioner, Central Excise and Service Tax Commissionerate, Alwar, lacked the power to transfer the case, noting that it was within his purview to request a transfer to the competent authority.

Conclusion:
The writ petition was allowed, and the impugned Order-in-Original was set aside. The proceedings pursuant to the show cause notice dated 2-5-2017 were revived and transferred to the Additional Director General, Directorate General of Central Excise Intelligence, Delhi Zonal Unit, New Delhi, for a decision in accordance with law. The Stay Application No. 3965/2018 was disposed of.

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