TaxTMI 
TaxTMI 
2022 (5) TMI 477
X X X X Extracts X X X X
X X X X Extracts X X X X
....ance of an appropriate Writ(s), Order(s), and/or direction(s) declaring that no excise duty is payable on the Food Items manufactured by the petitioner as all the pre-requisite stipulated under Notification No. 12/2012-Central Excise dated 17.03.2012 (Annexure-1) stands fulfilled and accordingly, permanently restrain the Respondent-department from giving effect, in any manner, to Impugned Order-in-Original dated 12.04.2021 (Annexure-6/1). OR (iii) For issuance of an appropriate Writ(s), Order(s), and/or direction(s) declaring that the very assumption of jurisdiction by the Respondent No.3 to issue Impugned SCN dated 24.07.2019 (Annexure-3) and act of Respondent No.2 of continuing proceedings thereto and passing of Impugned Order dated 12.04.2021 (Annexure-6/1) is bad in law, arbitrary and void-abinitio and hence, the entire proceedings are a nullity and accordingly quash the Impugned Order dated 12.04.2021 (Annexure-6/1); (iv) For issuance of an appropriate Writ (s), Order (s), and/or direction(s) as Your Lordships may deem fit and proper in the facts and circumstances of this case in the interest of justice; (v) For quashing and setting aside th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ficate from an officer not below the rank of the Deputy Secretary of the Central or State Government, to the effect the food preparations have been distributed free to the economically weaker sections of the society under a programme duly approved by the Central or State Government concerned, within 5 months from the date of clearance of such goods also has to be submitted. The said period of 5 months was further extendable by the jurisdictional commissioner. The petitioner duly applied to the Department of Women & Child development and Social Security, for issuance of the certificate mentioned above. However, the State Government issued the said certificate only after final payment of bills thereby the first consolidate certificate was issued for a period of July 2014 to November, 2015. Similarly, the certifications for the period thereafter up to June 2017 was issued in due course of time. 4. A service tax audit was carried out by Bokaro Service Tax Dvision/Bokaro Range-III (Service tax) for the Bokaro plant of the petitioner wherein all the available documents and records were verified along with original copies of available certificates; and a report for 'nonpayment of Ce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ereafter, a letter dated 19.11.2020 (through e-mail dated 26.11.2020) has been sent with directions to send/bring soft copy of defence reply as well as written submission to be submitted in course of personal hearing. It is stated that on 08.01.2021, personal hearing was granted in the matter to the petitioner and thereafter, the Impugned Order dated 12.04.2021 was passed by the respondent No.2 without considering the submissions of the petitioner including the specific request for extension of time for submission of certificate as per the condition mentioned under the Exemption Notification. 6. Mr. Biren Poddar, learned senior counsel for the petitioner-firm submits that in term of the Exemption Notification, the goods manufactured by the petitioner were exempted from Central Excise Duty subject to submission of the certificate from an authority not below the rank of Respondent No.1. In reply to the show cause notice, the petitioner requested the respondent no.2, who is a superior to the respondent no.1 to consider the reply as a request/application for extension of time for submission of certificate as per condition mentioned in the Exemption Notification and allow the exempti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itioner/noticee, but in the instant case the petitioner was given only two opportunities of hearing i.e. on 17.12.2020 and on 08.01.2021, and therefore the finding recorded by the Adjudicating Authority at page-309 to the effect that hearing was also fixed on 17.11.2020 is wrong and incorrect, as no such notice fixing date of personal hearing on 17.11.2020 was ever communicated to the petitioner. Mr. Poddar learned senior counsel further contended that there was sufficient compliance with respect to submitting the exemption certificate. The audit was conducted from 18.04.2017 to 20.04.2017 and during the course of audit, the exemption certificate issued by the Directorate of Social Welfare, letters submitted for issuance of certificate to the Directorate by the petitioner were furnished to the Audit Team from July, 2014 to November, 2015. Thereafter, the exemption certificate from December, 2015 to August, 2016 was also furnished to the Audit Circle vide letter dated 21.07.2017. Thereafter, the Jurisdictional Superintendent, Central Excise sought figures of production and supplies vide email dated 16.05.2019. The petitioner, while submitting the respective figures to the Jurisdi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance with those factors which are considered as essential." He concluded his argument by submitting that the writ application is maintainable as there is gross violation of natural justice. It is well settled that a writ can be entertained by the High Court under Article 226 of the Constitution of India if there is gross violation of natural justice. Even on merits, the petitioner is having a good case as non-submission of certificate was not the fault of the petitioner; rather it is the concerned government official who....
X X X X Extracts X X X X
X X X X Extracts X X X X
....certification from the concerned State Government authority, as mentioned in the condition for availing the exemption has not been submitted by the petitioner within the 5 months as prescribed in the exemption notification. Subsequently, a show cause notice dated 24.07.2019 (Annexure-3) was issued by the Commissioner, CGST & CX (Audit), Ranchi, concerning the period 2014-15, 2015-16, 2016-17 and 2017-18 (upto June, 2017) by invoking extended period of limitation, on the allegation of evasion of payment of central excise duty amounting to Rs. 70,86,86,088/- due to non-compliance of the conditions as stipulated in Notification dated 17.03.2012 (Annxure-1). The petitioner filed a preliminary objection on 08.08.2019 and finally in January, 2021 he filed show cause reply and thereafter, the Order-in-Original dated 12.04.2021 was passed. 9. It transpires that though it has been claimed by the petitioner-Firm that he had requested respondent No.1 regarding extension of time with respect to submission of certificate of exemption dated 17.03.2012; however, from record it appears that a formal request letter was sent vide letter dated 07.06.2021 which is after passing of the Order-in-Orig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. 27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. 27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. 27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view ....