Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 31ST DAY OF JANUARY 2024 / 11TH MAGHA, 1945 WP(C) NO. 35249 OF 2023 PETITIONER/S:
MUTHOOT PRECIOUS METALS CORPORATION, MUTHOOT CHAMBERS, OPPOSITE SARITHA THEATRE COMPLEX, BANERJI ROAD, KOCHI, ERNAKULAM, KERALA, INDIA-695141.
REPRESENTED BY MR. PAUL ANDREW P X, DEPUTY GENERAL MANAGER.
BY ADVS.
JAZIL DEV FERDINANTO JOSE JACOB ANNE MARIA MATHEW RESPONDENT/S:
1 UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI, PIN - 110001 2 COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, OFFICE OF THE COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE KOCHI, ERNAKULAM, KERALA, PIN - 682018 BY ADVS.
ACHUTH KRISHNAN R., CGC P.G.JAYASHANKAR OTHER PRESENT:
P.G. JAYASHANKAR -SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 35249 OF 2023 2 JUDGMENT Dated this the 31st day of January, 2024 The petitioner is a partnership firm. The petitioner is engaged in the business of obtaining gold and silver in the form of bars and bullions from Banks and other authorised dealers. The petitioner get this gold / silver bars and bullions, converted into coins and small bars for sale. The petitioner was issued with multiple show cause notices by the office of the 2nd respondent. The first show cause notice dated 22.01.2013 in Ext.P5 for the period 01.03.2011 to 16.03.2012. The said show cause notice was adjudicated by the 2nd respondent and the order in original dated 29.04.2014 in Ext.P7, was issued for the said period. The second show cause notice was issued on 10.09.2014 for the period 17.03.2012 to 31.07.2014. The third show cause notice was issued on 01.09.2015 for the period from 01.08.2014 to 31.07.2015. The order in original dated 29.04.2014 was taken in appeal and CESTAT passed the final order on 01.02.2016. Next show cause notice issued on 05.09.2016 as Ext.P10 for the period 01.08.2015 to 30.06.2016. The next show cause notice was issued on 27.07.2018 in Ext.P11 for a period from 01.07.2016 to 30.06.2017. CESTAT passed the final order on 02.02.2017 in the departmental appeal against the order in original dated 29.04.2014.
The Tribunal had remanded the matter back to the assessing
WP(C) NO. 35249 OF 2023 3 authority to pass fresh orders in original in respect of all the above show cause notices. The orders in original in Exts.P20 and 21 came to be passed on 10.05.2023 and 29.05.2023 respectively.
2. The petitioner has approached this court in the present writ petition impugning the said orders in original passed on 10.05.2023 and 29.05.2023 in Exts.P20 and P21 on the ground that the said orders in original are without jurisdiction inasmuch as they are not passed within the limitation prescribed under Section 11A(11) of the Central Excise Act(‘the Act’ for short).
Section 11A(11) reads as under:-- “***(11) The Central Excise Officer shall determine the amount of duty of excise under sub- section (10)— (a) within six months from the date of notice where it is possible to do so, in respect of cases falling under sub-section (1); (b) within 5 [two years] from the date of notice, where it is possible to do so, in respect of cases falling under sub-section (4) 3 [* * *].” 3. Thus, from the language employed in Section 11A(11) of the Act, two year period is prescribed for passing the original order from the date of notice, if it is possible to do so within the said period.
However if circumstances would disclose that it was not possible to pass the order within a period of two years, the order would not become without jurisdiction and the order should be treated to be within the limitation prescribed under the statue. It needs to be examined that whether it would have possible for the authority to
WP(C) NO. 35249 OF 2023 4 pass the order in (original) within two years since the date of remand by the Tribunal or these were circumstances which would indicate that it would not have been possible to pass the orders within two years from the date of remanding the tribunal.
4. On notice, counter affidavit has been filed on behalf of the respondents. In paragraph (16), a chronology of events has been given explaining the delay in passing the final orders in original on 10.05.2023 and 29.05.2023 in Exts.P20 and P21.
The paragraph (16) of the counter affidavit is reproduced hereunder:- 22.01.2013 :
Ext.P5 SCN issued for the period 01.03.2011 to 16.03.2012 29.04.2014 :
Ext.P7 OiO issued for the period 01.03.2011 to 16.03.2012 10.09.2014 :
Ext.P8 SCN issued for the period 17.03.2012 to 31.07.2014 01.09.2015 :
Ext.P9 SCN issued for the period 01.08.2014 to 31.07.2015 01.02.2016 :
Ext.P16 FO passed by CESTAT pursuant to Ext.P5 SCN 05.09.2016 :
Ext.P10 SCN issued for the period 01.08.2015 to 30.06.2016 02.02.2017 :
Ext.P17 Final order issued by CESTAT( Department Appeal) 01.07.2017 :
Rollout of GST 27.07.2018 :
Ext.P11 SCN issued for the period 01.07.2016 to 30.06.2017 August 2018 :
Floods in Kerala June 2019 :
Introduction of SVLDRS March 2020 :
Outbreak of COVID 19 and National Lockdown( 15.03.2020 till 28.02.2022- Supreme Court order on limitation in SuoMotu W.P(C) No. 3/2020) 2021-2022 :
Initiation of adjudication proceedings by the Adjudicating Authority November 2022 :
Personal Hearing to the petitioner 10.05.2023 :
Ext.P20 OiO issued 29.05.2023 :
Ext.P21 OiO issued 07.06.2023 :
Ext.P22 ROM Application against Ext.P20 09.06.2023 :
Ext.P23 ROM Application against Ext.P21 07.09.2023 :
Ext.P24 Order issued against Ext.P22 09.09.2023 :
Ext.P25 order issued against Ext.P23
WP(C) NO. 35249 OF 2023 5 5.Thus, considering the chronology given in the counter affidavit, in respect of the proceedings taken, in pursuance to the several show cause notices, it can be said that it might not have been possible to pass the orders in original within a period of two years.
Therefore, the orders in original cannot be said to be without jurisdiction.
6. In view thereof, the present writ petition is disposed of, with liberty to the petitioner to approach the appellate authority, against the two orders in original dated 10.05.2023 and 29.05.2023 in Exts.P20 and P21, within a period of three weeks from today. If the petitioner files the appeals against the said order before the CESTAT, the appellate authority shall consider the appeals on merit without going into the question of limitation. All contentions regarding the merit of the adjudication orders are kept open to the petitioner. The petitioner is permitted to deposit 5% instead of 10%, while filing the appeal before the CESTAT against the two impugned orders in original in Exts.P20 and P21.
The writ petition is disposed of as above.
Sd/- DINESH KUMAR SINGH JUDGE SJ
WP(C) NO. 35249 OF 2023 6 APPENDIX OF WP(C) 35249/2023 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF LETTER OBTAINED FROM THE BANK OF NOVA SCOTIA DECLARING THE DISCHARGE OF CUSTOMS DUTIES ON IMPORT OF THE BULLIONS EXHIBIT P2 TRUE COPY OF THE RELEVANT AGREEMENT BETWEEN THE PETITIONER AND VNMJC ALONG WITH THE RESPECTIVE AMENDMENTS AND ADDENDUMS EXHIBIT P3 TRUE COPY OF RELEVANT EXTRACTS FROM NOTIFICATION NO. 5/2006-CE DATED 01.03.2006 EXHIBIT P4 TRUE COPY OF RELEVANT EXTRACTS FROM NOTIFICATION NO. 12/2012-CE DATED 17.03.2012 EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE NO.
06/2013-CE DATED 22.01.2013 EXHIBIT P6 TRUE COPY OF THE REPLY DATED 15.05.2013 EXHIBIT P7 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.01/2014 DATED 29.04.2014 ISSUED BY RESPONDENT NO.2 EXHIBIT P8 TRUE COPY THE OF SHOW CAUSE NOTICE NO.
40/2014-CE DATED 10.09.2014 EXHIBIT P9 TRUE COPY OF THE SHOW CAUSE NOTICE NO.
59/2015-CE DATED 01.09.2015 EXHIBIT P10 TRUE COPY OF THE SHOW CAUSE NOTICE NO.
45/2016-CE DATED 05.09.2016 EXHIBIT P11 TRUE COPY OF THE SHOW CAUSE NOTICE NO.
17/2018-CE DATED 27.07.2018 EXHIBIT P12 TRUE COPY OF THE REPLY DATED 15.12.2014 IN RESPECT OF EXT P8 SHOW CAUSE NOTICE EXHIBIT P13 TRUE COPY OF THE REPLY DATED 22.09.2015 IN RESPECT OF EXT P9 SHOW CAUSE NOTICE EXHIBIT P14 TRUE COPY OF THE REPLY DATED 10.11.2016 IN RESPECT OF EXT P10 SHOW CAUSE NOTICE EXHIBIT P15 TRUE COPY OF THE REPLY DATED 30.08.2018 IN RESPECT OF EXT P11 SHOW CAUSE NOTICE EXHIBIT P16 TRUE COPY OF THE FINAL ORDER NO.20177/2016 DATED 01.02.2016 EXHIBIT P17 TRUE COPY OF THE FINAL ORDER NO.20192/2017 DATED 02.02.2017 EXHIBIT P18 TRUE COPY OF THE WRITTEN SUBMISSIONS DATED 02.12.2022 FILED FOR THE PERIOD FROM 01.03.2011 TO 16.03.2012 EXHIBIT P19 TRUE COPY OF THE WRITTEN SUBMISSIONS DATED
WP(C) NO. 35249 OF 2023 7 02.12.2022 FILED FOR THE PERIOD FROM 17.03.2012 TO 30.06.2017 EXHIBIT P20 TRUE COPY OF THE ORDER-IN-ORIGINAL NO. COC- EXCUS-000-02/2023-24/CE/COMMR ISSUED BY RESPONDENT NO.2 DATED 10.05.2023 EXHIBIT P21 TRUE COPY OF THE ORDER-IN-ORIGINAL NO. COC- EXCUS-000-COM-03, 04, 05 & 06/2023-24/CE/COMMR DATED 29.05.2023 EXHIBIT P22 TRUE COPY OF THE ROM APPLICATION DATED 07.06.2023 IN RESPECT OF EXT P20 OIO EXHIBIT P23 TRUE COPY OF THE ROM APPLICATION DATED 09.06.2023 IN RESPECT OF EXT P21 OIO EXHIBIT P24 TRUE COPY OF REPLY C.NO V/71/15/72/2012/CX ADJ 19.09.2023 EXHIBIT P25 TRUE COPY OF REPLY C.NO V/071/15/47/2014/ST ADJ 07.09.2023