Adhunik Steels Limited vs Union of India And Ors

Heard learned counsel for the petitioner and Mr. Amit Kumar for the Respondent Central Excise and Service Tax.

Writ petitioner has approached this Court for the following relief (s).

(i) For issuance of appropriate writ (s), direction (s) and / or order (s), including a writ in the nature of Certiorari for quashing / setting aside the Order in Original No. 23/Addl. Commr./2013 dated 28.03.2013 issued on 22.04.2013 (Annexure-4 to the writ application), especially because said Order in Original is barred by Limitation even after applying the extended period of limitation as contemplated under Section 11A of the Central Excise Act, 1944 and also specially because the said order is leading to perpetuated injustice and / or miscarriage of justice as the petitioner- Company has been imposed liability for payment of Central Excise Duty and penalty contrary to the provision of Central Excise Act, 1944.

(ii) For issuance of appropriate writ (s), direction (s) and / or order (s), including a writ in the nature of Certiorari for quashing / setting aside the detention notice dated 22.03.2015 issued by respondent no. 3 for recovery of alleged amount of duty and penalty pursuant to Order in Original dated 28.3.2013 as contained in Annexure-5.

Based on the inspection in the premises of the petitioner Company showing evasion of excise duty by resorting to suppression, show-cause notice was issued on 31.01.2012 by the Superintendent (ADJ), Central Excise Headquarters. Jamshedpur under section 11A (1) of Central Excise Act by invoking the period of limitation along with interest under section 11AB and proposed penalty under section 11AC of the Act of 1944 (Annexure-2). It is contended that the extended period of limitation under section 11A (1) is not applicable in the facts and circumstances of the case of the petitioner.

Petitioner has pleaded that it had not availed the CENVAT Credit on any of the capital goods. The removal of plant and machineries had taken place before 25.01.2007. The petitioner-Company had cooperated with the enquiry initiated by the Range Office and also submitted the requisite documents. Pursuant to summon proceedings, statement of the authorized representative of the Company was recorded under section 14 of the Act of 1944 on 30.09.2008 which revealed that the plant and machineries were removed in the month of January 2007. It was specifically contended that no CENVAT credit was availed by the petitioner-Company at the time of erection of the plant and / or purchase of machineries, therefore no central excise duty was levied upon the person to whom goods were sold. Petitioner however, contends that it had no knowledge about passing of the Order-in-Original dated 28.03.2013 by the learned Adjudicating Officer. It came to his knowledge for the first time when detention notice was served by the Office of Assistant Commissioner specifying that an amount of Rs. 63,48,480/- towards duty and penalty is payable by the petitioner by virtue of the impugned Order-in-Original dated 28.03.2013. Petitioner also deposited an amount of Rs. 1.00 lakh to the Respondent authority on 30.07.2015. In this background, petitioner has contended that it could not lay challenge to the Order-in-Original before the appropriate authority within the time prescribed. One Mithilesh Pandey who was then representing the petitioner-Company had never brought the fact of service of Order-in-Original to the notice of any higher officer of the petitioner- Company. Later on, he was removed from the Company. Since the period of limitation for filing an appeal under the Central Excise Act, 1944 had expired, petitioner was left with no alternative efficacious remedy than to invoke the jurisdiction of this Court for challenging the Order-in-Original. Since the Order-in-Original had led to miscarriage of justice and suffers from palpable illegality, this Court may entertain the writ petition, even though petitioner had not availed an alternative remedy of appeal under the Central Excise Act, 1944. Learned counsel for the petitioner has, on these submissions, pressed the prayer made in the writ petition.

Learned counsel for the Revenue submits that despite knowledge of the order of detention dated 22.03.2015 (Annexure-5), the petitioner-Company did not prefer an appeal within the period of limitation prescribed under the Act and approached this Court under Article 226 of Constitution of India. Learned counsel for the Respondent has relied upon the decision of the Apex Court in the case of Assistant Commissioner (CT), Kakinada and others Versus Glaxo Smith Kline Consumer Health Care Limited [2020 SCC OnLine SC 440] and submitted that in such a case where an aggrieved assessee has approached the Writ Court bypassing the remedy of appeal and beyond the statutory period of limitation, the Hon'ble Supreme Court has in categorical terms held that such a writ petition ought not be entertained. Present case is not one where an assessee has approached the Writ Court within the period of limitation on any of the permissible grounds of judicial review i.e. the order is without jurisdiction or passed in excess of jurisdiction by overstepping or crossing the limits of jurisdiction including a flagrant disregard of law and rules of procedure or in violation of principles of natural justice where no procedure is specified. Even in such an event, High Court may accede to such a challenge and can also non-suit the petitioner on the ground that alternative efficacious remedy is available. In the present case, the writ petitioner has chosen to approach this Court after expiry of maximum period of limitation of 60 days i.e. 30+30 days prescribed under the Act. Petitioner has not given any explanation whatsoever for having not approached the Appellate Authority within the time prescribed. In those circumstances, following the ratio laid down by the Apex Court in the case of Glaxo Smith Kline Consumer Health Care Limited (Supra), the writ petition deserves to be dismissed.

We have considered the submissions of learned counsel for the parties in the canvass of the facts and provisions of law noticed hereinabove. It is not in dispute that the writ petition has been preferred bypassing the alternative remedy of appeal available under the Central Excise Act, 1944 by the petitioner. Even after receipt of the detention order dated 22.03.2015 assuming that the petitioner had no knowledge of service of Order-in-Original, no effort was made on its part to prefer an appeal. Writ petition was preferred after expiry of the statutory period of limitation without any cogent explanation. In these circumstances, following the ratio laid down by the Apex Court in the case of Glaxo Smith Kline Consumer Health Care Limited (Supra), this Court does not find any grounds made out to entertain the writ petition. Writ petition is accordingly dismissed.