TMI Blog2019 (6) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... a latter circular dated 10.03.2017 which says that where the matter is remanded to an Authority, the adjudication process shall be done by the Authority in the same rank who passed the order prior to remand notwithstanding any violation in order. The third aspect is Section 12E of CE Act. In the light of there being no dispute that Additional Commissioner i.e., Respondent No.1, being superior to the Joint Commissioner and in other words, Joint Commissioner being subordinate to the Additional Commissioner, Section 12E was also followed . Owing to these aspects, the campaign of the writ petitioner with regard to jurisdiction comes to an end. Violation of principles of natural justice - Alternative remedy - HELD THAT:- There is no dispute or disagreement between the two learned counsel before this Court that there is an alternate remedy to the writ petitioner by way of statutory appeal to the Commissioner (Appeals)-II, Newry Towers No.2054-I,II Avenue, Anna Nagar, Chennai 600 040. This Court is unable to convince itself in the facts and circumstances of this case that there is lack of jurisdiction on the part of first respondent and that there is violation of NJP. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r inter-alia submitted that the Additional Commissioner has no jurisdiction to adjudicate the matter, the goods in question are classified under 19.32 as per relevant trade notice and it was also contended that under the proviso to Section 11A of 'Central Excise Act, 1944' ('CE Act' for brevity), the extended period cannot be invoked, as according to the petitioner, the Department was aware of the activities of the petitioner. 6. In the aforesaid backdrop of SCN and replies to the SCN adjudication proceeded. Adjudication proceedings culminated in an order dated 31.08.2003 made by the first respondent. This was assailed by the writ petitioner by way of an earlier writ petition being W.P.No.31200 of 2003, which came to be disposed of by this Hon'ble Court on 10.07.2017. 7. Considering the nature of submissions made and the grounds on which the instant writ petition is predicated, this Court deems it appropriate to extract the entire order dated 10.07.2017 made by another Hon'ble Judge of this Court in W.P.No.31200 of 2003. The same reads as follows: 'Heard Thiru.M.P.Senthil Kumar, learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned to take a fresh decision in the matter, after affording reasonable opportunity to the petitioner. No costs. Consequently, W.P.M.P.No.37984 of 2003 is closed. (underlining made by this Court to supply emphasis and highlight) 8. Pursuant to the aforesaid order, post remand by this Hon'ble Court, the matter was taken up by the first respondent. First respondent adjudicated upon the matter afresh and passed an order dated 28.02.2019 bearing reference C.S/C.No.V/15/40/2018- CS Adj (hereinafter 'impugned order' for brevity), which has now been called in question. 9. Learned counsel for writ petitioner, submits that the impugned order is being assailed on two main grounds and they are: a) Lack of jurisdiction on the part of first respondent who passed the same; and b) Violation of 'natural justice principles' ('NJP' for brevity). 10. This Court embarks upon the exercise of examining both these grounds. 11. With regard to lack of jurisdiction on the part of first respondent, who passed the impugned order, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been extracted and re-produced supra. The submission of learned counsel that the earlier writ petition is not W.P.No.6175 of 1999 and that it is W.P.No.31200 of 2003 is recorded. To be noted, order dated 10.07.2017 made in W.P.No.31200 of 2003 is annexed as part of the typed-set of papers and more particularly at Page 113. 13. A perusal of the impugned order reveals that the Adjudicating Authority has held that this Hon'ble Court has left the jurisdiction issue open. A perusal of the earlier order of this Hon'ble Court and more particularly Paragraph 4 therein, makes it clear that the learned Adjudicating Authority has understood the order of this Hon'ble Court correctly and the Adjudicating Authority is correct in understanding that this Court has left the issue of jurisdiction open. Therefore, the Adjudicating Authority has embarked upon the issue of jurisdiction and has relied on the latest circular dated 10.03.2017 bearing a reference 1053/02/2017-CX (F.No.96/1/2017-CX.I). Relevant portion of this circular being Paragraph 24 has been extracted in the impugned order and the same reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been arrived at. Considering the position that the impugned order is being assailed on the ground of violation of NJP, this Court deems it appropriate to extract Paragraph 4.1 and 5.0, which read as follows: '4.1. However Ms.Sushma Harini A, Advocate, vide her letter dated 25.01.2019 (on a plain white sheet) stated that the subject was remanded to the appropriate authority for fresh adjudication after providing sufficient and reasonable opportunity. Further she contended that one of the grounds raised in the writ petition was that the Additional Commissioner no longer held jurisdiction to decide the above case in view of the Circular dated 01.10.2003 (No.752/68/2003-X) and consequently the jurisdiction no longer vested with the learned Additional Commissioner. She also contended that in view of the order of the High Court in W.P.No.31200/2003 dated 10.07.2017, the case had to be posted for hearing before appropriate authority. She also requested to transfer the case to the officer holding jurisdiction and to post for hearing of the case. FINDINGS 5.1. I have gone through the records of the case and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NJP are two such exceptions. However, in the instant case, considering the facts and circumstances of the case, which have been alluded to supra i.e., lack of jurisdiction in first respondent passing the order and violation of NJP, do not find favour with this Court. In other words, this Court is unable to convince itself in the facts and circumstances of this case that there is lack of jurisdiction on the part of first respondent and that there is violation of NJP. 24. Therefore, in the considered opinion of this Court this is a fit case to relegate the writ petitioner to alternate remedy of filing an appeal to Commissioner (Appeals)-II, Newry Towers No.2054-I,II Avenue, Anna Nagar, Chennai 600 040. It is made clear that if the writ petitioner chooses to avail alternate remedy, the writ petitioner is at liberty to raise all the issues including the issues raised in this writ petition except the issue of jurisdiction, which has been decided by this Court now in this order. If the writ petitioner chooses to avail the alternate remedy, it is open to the writ petitioner to file an application for condonation of delay and also plead exclusion under Section 14 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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