2019 (6) TMI 807 - HC - Central Excise

Court upholds jurisdiction of Additional Commissioner, directs petitioner to appeal for remedy.

M/s. Stromtek Automation Pvt. Ltd. Versus The Additional Commissioner Office of the Commissioner of GST & C. Ex, The Central Board of Excise & Customs

M/s. Stromtek Automation Pvt. Ltd. Versus The Additional Commissioner Office of the Commissioner of GST & C. Ex, The Central Board of Excise & Customs - ... Issues Involved:1. Lack of jurisdiction of the adjudicating authority.2. Violation of principles of natural justice (NJP).3. Alternative remedy available to the petitioner.Issue-wise Detailed Analysis:1. Lack of Jurisdiction of the Adjudicating Authority:The petitioner argued that the Additional Commissioner lacked jurisdiction to pass the impugned order based on a Circular dated 01.10.2003 (Circular No.752/68/2003) issued by the Central Board of Excise and Customs. According to this circular, cases involving duty amounts between Rs. 5 lakhs and Rs. 20 lakhs should be adjudicated by Joint Commissioners, and the duty involved in this case was Rs. 13,84,945/-. However, the court noted that this issue had been left open in an earlier order dated 10.07.2017 in W.P.No.31200 of 2003. The adjudicating authority referred to a later circular dated 10.03.2017, which stated that in cases of de novo adjudication, the authority of the same rank who had initially passed the order should decide the case. Additionally, Section 12E of the Central Excise Act allows any Central Excise Officer to exercise the powers and discharge the duties of any subordinate officer. Therefore, the court concluded that the Additional Commissioner had jurisdiction to adjudicate the matter.2. Violation of Principles of Natural Justice (NJP):The petitioner claimed that the impugned order violated the principles of natural justice. The court examined paragraphs 4.1 and 5.0 of the impugned order, which recorded the submissions made by the petitioner's counsel. The court found that the submissions were considered, and therefore, the petitioner was given an opportunity to present their case. The court expressed no opinion on the merits of the findings but concluded that the principles of natural justice were not violated as the petitioner had the opportunity to make submissions.3. Alternative Remedy Available to the Petitioner:The court noted that there was an alternative remedy available to the petitioner by way of a statutory appeal to the Commissioner (Appeals)-II. The court referred to the Supreme Court's rulings in K.C. Mathew and Satyawati Tandon cases, which emphasized that the availability of an alternative remedy should be construed strictly, especially in cases pertaining to taxes and fiscal laws. The court acknowledged that exceptions to this rule include lack of jurisdiction and violation of NJP, but in this case, it found no lack of jurisdiction or violation of NJP. Consequently, the court directed the petitioner to avail the alternative remedy of filing an appeal and allowed the petitioner to raise all issues except the issue of jurisdiction in the appeal. The court also directed the appellate authority to consider the appeal on its merits and dispose of it expeditiously.Conclusion:The writ petition was disposed of, directing the petitioner to pursue the alternative remedy of filing an appeal with the Commissioner (Appeals)-II. The court clarified that the petitioner could raise all issues except the issue of jurisdiction in the appeal and that the appellate authority should consider the appeal on its merits. The court also allowed the petitioner to file an application for condonation of delay and to plead exclusion under Section 14 of the Limitation Act.