TMI Blog2018 (12) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... cord to suggest otherwise - Petition dismissed. - WP 529 of 2018 - - - Dated:- 4-12-2018 - Debangsu Basak, J. For the Petitioner : Mr. R. K. Chowdhury, Advocate For the Respondent : Mr. Somnath Ganguly, with Mr. B.P.Banerjee, Advocates ORDER DEBANGSU BASAK, J :- The Court: A show-cause cum demand notice dated September 11, 2013 and the consequential Order in Original dated August 30, 2018 are under challenge in the present writ petition. According to the petitioner, the impugned show cause cum demand notice as also the Order in Original suffers from lack of jurisdiction. The petitioner contends that, the show cause cum demand notice was issued in respect of transactions had for the year 2009-11. The show-cause cum demand notice is dated September 11, 2013. It is beyond the period of limitation of one year prescribed under Section 11A of the Central Excise Act, 1944. For the authorities to invoke the provisions of Section 11A(4) of the Act of 1944, the essential ingredients in respect thereto must be present. In the present case none of them are present. The claim being barred by limitation, the assumption of jurisdiction by the authorities in issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act of 1944 on the ground that the petitioner was guilty of suppression of facts. He refers to the evidence given by the Managing Director of the petitioner where, the Managing Director submitted that, the petitioner did not carry out any manufacturing activity and that, the Managing Director had no knowledge of the persons to whom the imported goods were sold. In such circumstances, the adjudicating authority returned the finding that the petitioner acted fraudulently in obtaining the registration as a manufacturer and had actually dealt with the goods as a trader. Consequently, there is no infirmity in the impugned order either when it decides the question of limitation or when it returned the finding that, the petitioner is liable to pay sum adjudicated. He submits that, the points raised by the petitioner were considered in detail. The impugned order contains adequate reasons. The petitioner was heard during the adjudicating process. The impugned order cannot be said to be without jurisdiction. Therefore, there being no infirmity in the order, no interference is called for. This is the second writ petition at the behest of the writ petitioner relating to the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. Section 11A(4) of the Act of 1944 allows the authorities five years time from the relevant time to serve notice upon such person to show cause as to why the person responsible should not pay the amount specified in the notice along with interest thereon along with penalty equivalent to the duty specified in the notice. The show-cause notice alleges that, the petitioner is guilty of suppression of facts. Section 11A(4)(d) of the Act of 1944 deals with such scenario. Such clause relates to suppression of facts. In the facts of present case, the petitioner claimed itself to be a manufacturer and obtained a registration. On raid, the authorities found that, the petitioner not to be a manufacturer and to have indulged in trading of the imported goods after obtaining the benefits under the DFCE Scheme. The authorities found the petitioner to have suppressed facts relating to its business while obtaining the registration and the benefits under the DFCE Scheme. The change of suppression of facts made in the show-cause cum demand notice stands substantiated. There is no infirmity or perversity with regard thereto. The transaction relates to the period 2009- 2011 and the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Director admits such mistake in a statement under Section 108 of the Customs Act, 1962 and proceeds to say that, such statements are incorrect in cross-examination made by the petitioner. The adjudicating authority rightly refused to rely on such cross-examination of the Managing Director. In any event, there is overwhelming evidence on record to suggest that, the petitioner availed of the benefits making a false representation to the authorities and is now seeking to dodge the fiscal law. Artee Overseas Private Limited (supra) follows a Division Bench of the Bombay High Court. The Bombay High Court judgment noted in Artee Overseas Private Limited (supra) is of the view that, a quasi judicial authority cannot exclude from its consideration the material which is relevant. If it does so, the order suffers from nonobservance of the principles of natural justice. In the present case, the adjudicating authority did not exclude from its consideration, any material which is relevant. None of the judgments, which the petitioner claims is relevant to the issue, has any relevance in the facts of the present case. None of the judgments cited on the point of limitation states tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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