M/S Ishan Construction vs. The Commissioner Of Central Excise (Appeals)

Facts

The petitioner, M/s Ishan Construction, filed a Writ Petition seeking a direction to Respondent No. 1, the Commissioner of Central Excise (Appeals), to decide an application (Annexure P/9) dated 24.01.2023 before considering the main appeal. Proceedings under Section 73(1) of the Finance Act, 1944, read with Section 174 of the CGST Act, 2017, were initiated against the petitioner, resulting in an order dated 27.01.2022. The petitioner claims no notice was issued for this proceeding and they were unaware of it. A prior show-cause notice dated 17.10.2018 for the same cause of action was contested by the petitioner. The order dated 27.01.2022 led to the closure of the subsequent proceeding. The petitioner repeatedly approached authorities alleging non-receipt of notice for the earlier proceeding. After rejections, an appeal was preferred on 18.01.2023. The application (Annexure P/9) filed on 24.01.2023 sought a decision on whether the petitioner was ever served with a show-cause notice.

Held

The Court held that it was not necessary to issue a specific direction to Respondent No. 1 to decide Annexure P/9 dated 24.01.2023 before considering the appeal on merits. The reasoning was that the substantive ground raised by the petitioner in the appeal itself was the denial of an opportunity of hearing and non-service of a show-cause notice. Therefore, this issue would naturally be the first to be examined by the Appellate Authority. The Court also left it open for the Appellate Authority to consider whether there were justifiable reasons for the petitioner not preferring the appeal under Section 107 within the prescribed or reasonable period. The Appellate Authority would first decide on this issue before proceeding further. The Writ Petition was disposed of with these observations.

Key Issues

1. Whether the Respondent No. 1 should be directed to decide the application (Annexure P/9) dated 24.01.2023 before considering the main appeal, as per the petitioner's request. Petitioner's Arguments: The petitioner contends that their primary ground in the appeal is the violation of the principle of natural justice due to the non-receipt of a show-cause notice and lack of opportunity of hearing for the order dated 27.01.2022. They argue that the application (Annexure P/9) specifically seeks to address this preliminary issue of notice service before the appeal is heard on merits. Therefore, a direction is sought to decide this application first. Revenue/State's Arguments: The judgment records no specific arguments from the respondents regarding the direction sought by the petitioner. However, the court's reasoning implies that the substantive ground of the appeal itself addresses the issue of notice and opportunity of hearing.