TMI Blog2019 (7) TMI 1745X X X X Extracts X X X X X X X X Extracts X X X X ..... ue an appropriate Writ, Order or direction, more particularly one in the nature of Writ of Mandamus, declaring the Order-in-Original No. 9/2018-19/TDINESH/CGSTKKD/ST, dated 16-5-2018, passed by the 3rd respondent as illegal, arbitrary, unconstitutional and passed without jurisdiction and in violation of the provisions of the Finance Act, 1994 and set aside the same and consequently direct the Respondents to refrain from recovering the amounts demanded in the Order-in-Original No. 9/2018-19/TDINESH/CGSTKKD/ST, dated 16-5-2018, and pass such other order or orders as the Hon ble Court may deem fit and proper in the circumstances of the case. 2. We have heard the submissions of Sri Vivek Chandra Sekhar S, Learned Counsel appearing for the writ petitioner; of Learned Assistant Solicitor General of India, appearing for the 1st respondent, of Sri Suresh Kumar Routhu, Learned Standing Counsel appearing for the respondents 2 to 4, and of Sri K. Ramanna Dora, Learned Counsel appearing for the 5th respondent. We have perused the material record. 3. The introductory facts are as follows :- The petitioner is a partnership firm engaged in the business of supply of tangible goods and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had already submitted a detailed reply to the notice that was issued on the basis of audit objections. The 3rd respondent, however, proceeded to pass the order-in-original, dated 16-5-2018, confirming the demand in the show cause notice. On receipt of recovery notice, dated 12-10-2018, the petitioner preferred an appeal before the 2nd respondent, along with an application for condonation of delay of 185 days, which had occasioned in the circumstances stated in the said application. The 2nd respondent dismissed the appeal, on 21-12-2018, on the ground of delay. Hence, the present writ petition is filed. 4. In the above stated factual matrix, which lead to the filing of this writ petition, Learned Counsel for the petitioner contended as follows : In view of the detailed objections filed to the audit letter, the 3rd respondent ought to have considered the same before passing the impugned order-in-original. The objections filed indicate that the petitioner has got a fair chance of success. Had the objections been considered, the 3rd respondent would not have passed the order-in-original. Though objections are filed to the audit letter, in the said impugned order, it was strangel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 6. Only because an audit has been undertaken, the fact of non-declaration of the full details of the services rendered and considerations received in the ST-3 returns and the suppression of the facts and contravention of the provisions of the Finance Act, 1994 have come to light. Otherwise, the petitioner would have evaded payment of tax. The matter came to light on investigation into activities of the petitioner. Hence, the petitioner cannot contend that there was no suppression of facts. The extended period of limitation is applicable. Hence, Section 78 of the Finance Act was rightly invoked by the Department and penalty was rightly imposed under the said Section of law while refraining from invoking Section 76 of the said Act. Admittedly, no objections are filed to the show cause notice and no cause was shown by a representation for not confirming the demand in the show cause notice. The taxes, interest and penalty are duly determined after following the principles of natural justice. The petitioner has no case on merits as being sought to be contended before this Court in view of the legal position enunciated in Singh Enterprises v. Commissioner of C.Ex. Jamshedpur [2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the petitioner that undated reply/objections are filed to the audit letter is not denied. However, Learned Standing Counsel would contend that without exhausting the remedy of further appeal, the petitioner filed this writ petition inter alia challenging the order-in-original and, therefore, the writ petition is not maintainable and is liable to be dismissed. 10. It is profitable to now refer to the decision of a Full Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Electronics Corporation of India Ltd. v. Union of India and Others [2018 (3) ALD 321 = 2018 (361) E.L.T. 22 (A.P.)] wherein on a reference made to the Full Bench, the Full Bench answered the following question - whether the decisions of this Court in M/s. Resolute Electronics Pvt. Ltd. v. Union of India, [2015 (3) ALD 610 (DB) : 2015 (319) E.L.T. 51 (A.P.)] and Star Enterprises v. Joint Commissioner, Guntur, [2016 (41) S.T.R. 20 (A.P.)], require reconsideration. It was noted that by the said decisions, a Division Bench of that Court had held that a writ petition under Article 226 of the Constitution would not lie against an Order-in-Original pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the law or the rules of procedure or in violation of the principles of natural justice, thereby resulting in failure of justice and that the Full Bench of the said Court cautioned that writ jurisdiction should not be converted into appellate jurisdiction resulting in re-appreciation of evidence or correction of errors, where two views are possible and that the Full Bench of that Court while referring to Singh Enterprise s case (supra), observed that the issue as to whether Section 35 of the Act of 1944 affects the jurisdiction of the High Court under Article 226 of the Constitution was not considered therein and that it would always be open to the High Court to decline to exercise power under Article 226 of the Constitution in a given case after expiry of the permissible condonable period of 30 days, if the case did not fall in any of the exceptional categories where gross injustice is satisfactorily demonstrated. The Full Bench of the Gujarat High Court finally answered the reference as under : (1) Question No. 1 is answered in negative by observing that the limitation provided under Section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, the petitioner herein can, in the facts and circumstances of the case, assail the order-in-original passed by the 3rd respondent and it is not necessary for the petitioner to assail the orders dismissing the appeal as time-barred. Hence, we are inclined to dispose of the writ petition with appropriate directions. 14. In the result, the Writ Petition is allowed and the impugned order-in-original is set aside and the matter is remitted to the 3rd respondent for consideration and passing orders afresh subject to the following directions : The petitioner shall file within two weeks from the date of receipt of a copy of this order, objections, if any, to the show cause notice. Whether any objections are filed or not within the above said time, the 3rd respondent shall, within two months thereafter, pass orders afresh, however, after duly considering the objections filed by the petitioner to the audit letter and the objections, if any, filed in reply to the show cause notice and after affording an opportunity of personal hearing. As a sequel to this order, the respondents shall refrain from proceeding further with the recovery proceedings pursuant to the recovery notice, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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