2026 (2) TMI 9 - HC - Central Excise

Rule 26(2) of the Central Excise Rules: time granted to respond to show cause; vires challenge preserved.

Leave to withdraw was permitted while the petitioner was granted four weeks to respond to an impugned show cause notice under Rule 26(2) of the Central ... Leave to withdraw with liberty to respond to show cause notice - right to raise challenge to vires of subordinate legislation - principles of natural justice and fair play - Rule 26(2) of the Central Excise Rules, 2002 - HELD THAT:- The request made on behalf of the petitioner is not opposed by the the respondents. Even otherwise, we think this request is reasonable because, normally, issues of ultra vires and constitutional validity are not to be decided by this Court merely because we can do so; such issues are to be decided only if we must. Accordingly, we grant the petitioner four weeks’ time to respond to the impugned show cause notice. All contentions of all parties are left open, including the issue of whether Rule 26(2) is allegedly ultra vires the parent Act. Though such an issue cannot be raised before the Adjudicating Authority, if any adverse orders are made, disposing of the impugned show cause notice, then the right of the petitioner to question the validity of Rule 26(2) of the Central Excise Rules, 2002 is left open. Accordingly, this writ petition is disposed of, as withdrawn, with the aforesaid liberty. Issues: (i) Whether the writ petition may be permitted to be withdrawn with liberty to the petitioner to respond to the impugned show cause notice and be granted time to do so; and consequentially whether issues including the challenge to Rule 26(2) of the Central Excise Rules, 2002 may be left open for future adjudication.Analysis: The petition was argued and the petitioner sought leave to withdraw the writ petition while retaining the right to respond to the impugned show cause notice and to raise all contentions (including a challenge to the vires of Rule 26(2) of the Central Excise Rules, 2002) if adverse orders are passed. The respondents did not oppose the request. The Court noted the general principle that constitutional or ultra vires questions are to be decided only when necessary and that procedural fairness requires affording the petitioner a reasonable opportunity to be heard before disposal of the show cause notice. The Court therefore exercised its discretion to allow withdrawal subject to liberty to respond and to preserve all substantive contentions for future adjudication.Conclusion: The writ petition is permitted to be withdrawn with liberty to the petitioner to file a response to the impugned show cause notice within four weeks and with all contentions left open for future adjudication; the petitioner's request is allowed.Final Conclusion: The disposal leaves the substantive fiscal questions undecided and preserves the petitioner's right to raise all contentions before the Adjudicating Authority or in subsequent proceedings while directing that the Adjudicating Authority must observe principles of natural justice in disposing of the show cause notice.Ratio Decidendi: Courts should avoid deciding constitutional or ultra vires questions unless necessary; procedural relief in the form of withdrawal with liberty and a time-bound opportunity to respond may be granted while preserving all substantive rights and requiring observance of natural justice by the Adjudicating Authority.