2025 (9) TMI 767 - HC - Customs

Show-cause notice and order set aside for failing mandatory pre-consultation under CBEC Circular No. 1053/2/2017-CX

The HC held the show cause notice and the consequent original order invalid for failure to follow mandatory pre-consultation under CBEC circular No. ... Violation of principles of natural justice - SCN not preceded by pre-consultation which is mandatory as per ccircular No. 1053/2/2017-CX dated 10 March 2017 issued by the Central Board of Excise & Customs, New Delhi - HELD THAT:- In Jay Mahakali Industrial Service Vs. Union of India [2025 (2) TMI 561 - GUJARAT HIGH COURT], a Division Bench of the Gujarat High Court, has held that the requirement of pre-consultation where the demand of duty is above Rs. 50 lakhs (except for preventive/office-related show cause notices) is mandatory. Similarly, the Delhi High Court in the case of Amadeus India Pvt. Ltd. Vs. Principal Commissioner [2019 (5) TMI 669 - DELHI HIGH COURT] has also held that the requirement of pre-consultation before issuance of a show cause notice involving a demand of more than Rs. 50 lakhs is mandatory. Considering clause 5.0 of the CBEC circular and the decisions of the Delhi High Court, it is opined that the requirement of pre-consultation should have been followed in this matter. Even if it to be assumed that the letter dated 8 June 2020 was an invitation to a pre-consultation, the record still bears out that the Petitioner did not actually receive such a letter. There can be no dispute that at the time when the letter was sent, the COVID-19 pandemic was raging. On a cumulative consideration of these circumstances, it is satisfied that this requirement of pre-consultation was not complied with in this case. The impugned show cause notice dated 30 December 2020 and the order in original dated 1 May 2024 based upon the impugned show cause notice are set aside and the Respondents are granted liberty to hold a pre-consultation as required under the circular - petition allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the CBEC Master Circular (10 March 2017) requirement of pre-show-cause-notice consultation by the Principal Commissioner/Commissioner in cases involving demands of duty above Rs.50 lakhs (except preventive/offence-related SCNs) is a mandatory legal prerequisite to issuance of a show cause notice under Section 73 of the Finance Act, 1994. 2. Whether a letter dated 8 June 2020 seeking financial/return information, sent and returned as 'unclaimed', constitutes compliance with the mandatory pre-consultation requirement (if held to be mandatory), especially in circumstances of the COVID-19 pandemic. 3. If non-compliance with the pre-consultation requirement is found, what is the appropriate remedy and the temporal consequences regarding limitation and further proceedings (i.e., whether the impugned show cause notice and consequent adjudication order must be set aside and whether respondents may be permitted to hold pre-consultation afresh within a specified period). ISSUE-WISE DETAILED ANALYSIS Issue 1 - Mandatory Nature of Pre-Consultation Requirement Legal framework: Section 73 of the Finance Act, 1994 empowers issuance of show cause notices for non-payment of service tax but contains no express requirement for pre-issuance consultation. The CBEC Master Circular dated 10 March 2017 (clause 5.0) directs that prerogative adjudicating officers must undertake pre-show-cause-notice consultation by the Principal Commissioner/Commissioner in cases involving demands above Rs.50 lakhs (except preventive/offence-related SCNs), referencing an earlier instruction making such consultation mandatory. Precedent treatment: Two High Courts have previously held that the Board's circular makes pre-consultation mandatory in cases involving demands exceeding the prescribed monetary threshold; those decisions are treated as persuasive authority by The Court. A challenge to one such decision is pending before the apex court, with no stay granted. Interpretation and reasoning: The Court reads clause 5.0 of the Master Circular and the prior instruction as imposing a mandatory procedural requirement where the monetary threshold is met. Although the statutory provision (Section 73) is silent on pre-consultation, the Court treats the administrative fiat embodied in the Board's circular as obligatory on the revenue authorities for the specified class of cases. The reasoning emphasizes trade facilitation and promoting voluntary compliance as the policy underpinning the circular and notes concordant views of High Courts that have considered the circular's effect. Ratio vs. Obiter: The holding that pre-consultation is mandatory in cases of demands above the threshold is applied as ratio decidendi for the facts of this matter. Remarks about the policy objectives of the circular and the absence of express statutory language are explanatory but not treated as obiter on the core point because the decision directly rests on the mandatory nature of the circular for the specified cases. Conclusion: The Court concludes that the pre-consultation requirement under the Board's circular ought to have been followed prior to issuance of the impugned show cause notice in the present matter (the demand exceeding Rs.50 lakhs), and non-compliance constitutes a jurisdictional/mandatory procedural lapse. Issue 2 - Sufficiency of the 8 June 2020 Letter and Service During COVID-19 Legal framework: Compliance with the circular requires actual consultation with the noticee by the adjudicating authority; administrative steps alleged to constitute consultation must demonstrably reach the noticee and afford an opportunity to engage. Principles of valid administrative notice and procedural fairness apply, with special consideration given to exigent circumstances such as the COVID-19 pandemic. Precedent treatment: The Court relies on the same High Court authorities referenced in Issue 1 that construed the circular as mandating pre-consultation; those authorities emphasize substantive compliance rather than mere form. No apex-court ruling altering that view has stayed its operation. Interpretation and reasoning: The respondents contended that a letter dated 8 June 2020, dispatched on 15 June 2020 and returned 'unclaimed', constituted fulfillment of pre-consultation. The Court rejects that contention on cumulative grounds: the record does not show actual receipt by the petitioner; the circular mandates consultation 'with the assessee concerned' (implying effective communication and engagement); and the letter was sent during the height of the COVID-19 pandemic when physical access and postal reliability were impaired. The Court finds it inequitable to impute failure to respond to the petitioner where pandemic conditions and an unreceived communication are shown. Consequently, the 8 June 2020 communication does not amount to a compliant pre-consultation under the circular. Ratio vs. Obiter: The finding that the specific 8 June 2020 letter did not satisfy the pre-consultation requirement is applied as a dispositive ratio for the present case. Observations concerning service reliability during the pandemic and the need for actual engagement are explanatory but directly support the dispositive conclusion and are therefore part of the operative reasoning. Conclusion: The Court holds that the 8 June 2020 letter, returned 'unclaimed', did not fulfil the pre-consultation requirement; on the facts and having regard to pandemic circumstances, the prerequisite consultation was not effected. Issue 3 - Remedy and Temporal Consequences of Non-Compliance Legal framework: Where a mandatory pre-procedural requirement is not complied with, the appropriate remedy can include quashing the impugned show cause notice and any consequential adjudication, with liberty to the authority to re-initiate proceedings after complying with the mandated procedure, subject to limitation principles and equity. Courts may impose timelines to prevent prejudice and to balance the rights of the parties and public interest. Precedent treatment: The Court follows the approach in prior High Court decisions which have set aside administrative action taken in breach of the Board's circular and permitted fresh action subject to compliance with the mandated pre-consultation; no conflicting higher-court stay was produced. Interpretation and reasoning: Given the mandatory nature of the pre-consultation and its non-compliance, the Court sets aside the impugned show cause notice and the consequential order. However, recognizing the revenue interest and that limitation may be relevant, the Court grants liberty to the respondents to conduct a fresh pre-consultation within a defined period and conditions: the pre-consultation must be held within six weeks from the date of uploading the order; the petitioner must cooperate if a pre-consultation notice is issued within four weeks of that date; and the previously ordered interim restraint continues until a specified date. The Court expressly leaves all substantive merits open for fresh consideration post-compliance and notes that no costs are imposed. Ratio vs. Obiter: The remedial order quashing the SCN and permitting fresh action after compliant pre-consultation is ratio in relation to the procedural defect identified. Statements preserving merits for fresh adjudication and directions regarding timeline and cooperation are operative parts of the decree rather than mere obiter. Conclusion: The appropriate remedy is to quash the impugned show cause notice and the order based thereon for failure to comply with the mandatory pre-consultation; respondents are granted liberty to conduct a fresh pre-consultation within a stipulated period (with concomitant timelines set for cooperation and without prejudice to limitation, given the stay previously granted), and all substantive issues remain open for adjudication thereafter.