TaxTMI 
TaxTMI 
2020 (12) TMI 64
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....oard's Circular dated 10.03.2017 is quoted below for ready reference: "5.0 Consultation with the noticee before issue of Show Cause Notice: Board has made pre show cause notice consultation by the Principal Commissioner/Commissioner prior to issue of show cause notice in cases involving demands of duty above Rs. 50 lakhs (except for preventive/offence related SCN's) mandatory vide instruction issued from F.No.1080/09/DLA/MISC/15, dated 21st December 2015. Such consultation shall be done by the adjudicating authority with the assessee concerned. This is an important step towards trade facilitation and promoting voluntary compliance and to reduce the necessity of issuing show cause notice." 3. When the writ petition was taken up at the initial stage on 16.12.2019, the learned counsel for the appellant, Mr.M.A.Mudi Mannan, agreed to the suggestion of the Court and the learned counsel for the Revenue, Mrs.Hema Muralikrishnan, also agreed that even now, after the issuance of Show Cause Notice in question on 23.10.2019, with regard to certain issues of levy of service tax on the Assessee, the Assessee may appear before the Adjudicating Authority in terms of para 5 of Board'....
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....compliance of the pre-consultation meeting, the learned Single Judge was pleased to quash the Show Cause Notice issued by the Adjudicating Authority and against which, the Department has filed Writ Appeal W.A.No.83 of 2020 and the same is pending in this Court and submitted that the Show Cause Notice in question deserves to be quashed by this Court. 9. Per contra, Mrs.Hema Muralikrishnan, learned counsel for the Revenue submitted that the said Board's Circular, especially paragraph 5, was actually issued by the Board to thrash and sort out certain issues on the basis of audit objection and report of the Audit Commissioner at the pre-Show Cause Notice stage, so that with the production of relevant document and evidence, if the Assessee can satisfy the objections of audit raised in that regard and then the Show Cause Notice for undertaking the adjudication process with regard to such issues may not be unnecessarily taken and that was the pious purpose for which the said Board's Circular was issued. 10. She urged that however, the Assessee in the present case, by invoking the writ jurisdiction of this Court, has defeated the very purpose of issuance of Show Cause Notice and ....
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....ing Authority. Then, the Adjudicating Authority or the Assessing Authority is expected to decide those issues and objections and pass appropriate Adjudication Order. If the Assessee feels aggrieved by the same, further two appellate forums are available under the law, namely first appeal before the Commissioner (Appeals) and second appeal before the Tribunal. Even thereafter, on the questions of law, the Assessee has a remedy before the High Court and further appeal to the Supreme Court. Therefore, such a series of hierarchical alternative remedial procedures and measures are already envisaged and provided for in the Central Excise Act and similar provisions are available in almost all the taxing statutes. 14. In view of the above, the pre-consultation procedure provided by the Board in its Circular dated 10.03.2017, even though there is no such statutory requirement or provision in the Central Excise Act itself, perhaps was issued with a pious objective of cutting short the controversy before the Show Cause Notice stage itself, is and has been abused by the Assessees in the manner like the present case being illustrative one of that. The Board is, of course, expected to lay down ....
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....hallenge such an innocuous order of the learned Single Judge before the writ appellate Court again, perhaps knowing that it will take at least some more time for the Appellate Court also to decide this writ appeal and till then, adjudication proceedings can be delayed. It is precisely this, what is called an abuse and misuse of process of law. The writ jurisdiction is not meant to be invoked in such cases at all. 18. The regular procedure of Show Cause Notice, filing of objections, assessment and appeals are fully provided for in the relevant statutes. Therefore, cutting short that procedure by invoking the writ jurisdiction defeats the very purpose of that procedure provided in the law. The pre-consultation as provided in paragraph 5 of the Board's Circular quoted above was though a hedge provided for the benefit of the Assessees and the Department to narrow down the controversy, by spilling the litigation over that very thing, the Assessee successfully defeats the purpose of the same and that is what cannot be appreciated at all. 19. We are strongly of the opinion that entertaining the writ jurisdiction at the stage of Show Cause Notice under the taxing statutes unnecessari....