2025 (12) TMI 1461 - HC - Central Excise

CBIC pre-consultation before Central Excise show-cause notices and orders-in-original: mandatory for all cases; notices quashed, restarted.

Failure to follow the CBIC-mandated pre-consultation process before issuing show cause notices and passing orders-in-original under the Central Excise Act ... Principles of natural justice - requirement of pre-consultative process under the Central Excise Act, prior to issuance of show cause notice on the merits of the matter/passing of orders-in-original - suppression of facts or not - invocation of extended period of limitation - HELD THAT:- The parties refer to a decision of the Bombay High Court in a batch of matters in Rochem Separation Systems (India) Pvt. Ltd. V. The Union of India [2025 (10) TMI 68 - BOMBAY HIGH COURT], wherein an identical issue has been considered by the Division Bench. The Bombay High Court has held that the requirement of pre-consultation process cannot be dismissed as an empty formality and would have to be held to be mandatory. Various Courts have been considered for the proposition that Circulars issued by the CBIC are binding upon the authorities, and that thus, pre-consultation process, a laudable move on the part of the Revenue/Department, must hence be taken to be mandatory - reliance can be placed in Amadeus India Pvt. Ltd. V. Principal Commissioner, Central Excise, Service Tax and Central Tax Commissionerate [2019 (5) TMI 669 - DELHI HIGH COURT] and Back Office IT Solutions Pvt. Ltd. V. Union of India [2021 (4) TMI 520 - DELHI HIGH COURT]. Also, the Board has itself, vide the above Circular No. 1053/02/2017-CX dated 10.03.2017, made the position clear, that pre-consultation is mandatory in all other cases. Invocation of extended period of limitation - HELD THAT:- The invocation of extended limitation is based on the Department establishing fraud, collusion, wilful mis-statement, suppression of facts or contravention of the statutory provisions or rules, with intent to evade payment of duties or taxes. The aforesaid process involves the marshalling of evidence and constitutes a question of fact - Invariably as also in the cases here, assessee’s are entitled to object to the invocation of extended limitation, and argue that there has been no fraud, collusion, wilful mis-statement, suppression of facts or contravention of the Act and Rules, with intent to evade payment of duties and taxes - there is no justification in the Department taking a unilateral view in such matters concerning the invocation of extended period of limitation. There is thus no merit in the exclusion of such matters from the ambit of pre-consultation and Master Circular dated 10.03.2017 would thus apply across the Board, to all proceedings without exception. The impugned orders of assessment and the show cause notices are quashed. The proceedings stand revived from the stage of reference to pre-consultation process - Petition allowed. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether the pre-consultative process contemplated by the CBIC Master Circulars is mandatory prior to issuance of show cause notices and prior to passing orders-in-original on merits under the Central Excise/Service Tax regime. (ii) Whether the Department can unilaterally treat cases involving invocation of extended limitation (on allegations of fraud, collusion, wilful mis-statement, suppression of facts, or contravention with intent to evade) as excluded from pre-consultation, so as to dispense with the pre-consultative process. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Mandatory nature of pre-consultative process before show cause notices / orders-in-original Legal framework (as discussed by the Court): The Court considered the CBIC Master Circulars dated 10.03.2017 and 19.11.2020 which stipulate a pre-consultative, amicable approach prior to show cause notices (subject to stated exceptions), and the principle that such departmental circulars bind the Department. Interpretation and reasoning: The Court concurred with the reasoning of another High Court that the pre-consultative process is not an empty formality but an institutional mechanism directed toward trade facilitation, compliance promotion, and reduction of adversarial proceedings by attempting resolution before formal adjudicatory action. The Court emphasized the contemporary judicial approach of integrating alternate dispute resolution elements within statutory frameworks and held that the Department cannot eschew the Board-mandated pre-consultation. The Court also noted that the view treating pre-consultation as merely directory was a solitary outlier, whereas the prevailing view supported mandatory compliance. Conclusions: Pre-consultation under the relevant CBIC Master Circulars is mandatory. Show cause notices and orders-in-original issued/passed without following the pre-consultative process were liable to be quashed, with matters to be revived from the pre-consultation stage. Issue (ii): Effect of Board's clarification regarding extended limitation cases and whether such matters can be excluded from pre-consultation Legal framework (as discussed by the Court): The Court examined the Board's Instruction dated 11.11.2021 stating that pre-consultation would not be mandatory where proceedings relate to recovery based on fraud/collusion/wilful mis-statement/suppression/contravention with intent to evade, i.e., situations commonly associated with invocation of extended limitation. Interpretation and reasoning: The Court held that invocation of extended limitation depends on establishing fraud, collusion, wilful mis-statement, suppression of facts, or contravention with intent to evade, which requires marshalling evidence and is a question of fact. Assessees are entitled to dispute such invocation and contend that these elements are absent. Therefore, the Court found no justification for the Department taking a unilateral view at the threshold that such elements exist so as to bypass pre-consultation. On this reasoning, exclusion of extended limitation matters from pre-consultation was rejected, and the Master Circular dated 10.03.2017 was held applicable to all proceedings without exception. Conclusions: The Department cannot unilaterally dispense with pre-consultation merely by asserting grounds associated with extended limitation; pre-consultation applies across proceedings, including those where extended limitation is sought to be invoked. RELIEF AND DIRECTIONS (as finally granted) The Court quashed the impugned show cause notices and the impugned orders of assessment/orders-in-original, and revived the proceedings from the stage of reference to pre-consultation. The Court applied the same structured directions adopted in the relied-upon decision: the Revenue was permitted to initiate pre-consultation within a fixed timeframe, assessees to respond within a fixed timeframe, completion of pre-consultation within a further fixed timeframe, and issuance of fresh show cause notices depending on the outcome, along with an exclusion of time for limitation for the specified intervening period. All matters were allowed and no costs were ordered.