TMI Blog2022 (1) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ers/delinquents are prosecuted under law - Limitations contemplated in Statutes are directory on many occasions. Thus, several factual aspects are also to be considered for the purpose of deciding the case on the ground of limitation. Therefore, the Courts cannot adopt an arithmetic procedure of comparing the dates and to quash the orders on the ground of limitation. When it is not a final order, this Court is of an opinion that the Authorities must adjudicate the issues on merits. When the point of adjudication comes, then it is to be placed before the Competent Authorities for effective adjudication and to take a final decision by conducting an enquiry and by affording opportunities to the parties concerned. In view of the fact that the order impugned is passed merely based on the audit objection without conducting any adjudication, this Court is not inclined to made any finding with reference to the merits as well as the other grounds raised with reference to the facts and circumstances of the case. All such facts and circumstances on merits are to be adjudicated based on the original documents, audit objections and other evidences made available by the parties - the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y benefit availed are sought to be recovered merely based on the audit objection raised. Audit objections are raised based on the erroneous interpretation of the terms of the Scheme and beyond the scope of the Scheme and thus, the very initiation of recovery proceedings are in violation of the Scheme benefits as promised by the respondents. 5. Even on merits, the petitioners have raised several grounds. The extent of the Scheme benefits conferred and utilisation etc., which all are stated by the petitioners in their affidavits and during submissions. 6. This Court raised a question that an order impugned is the order admittedly passed pursuant to the audit objection raised by the Department of Audit. Thus, in the absence of any adjudication whether the High Court would be in a position to form an opinion with reference to various disputes raised on merits, including the point of limitation. 7. The respective learned counsels for the petitioners contended that they have raised all grounds on merits and as far as the limitation is concerned, it is sufficient, if it is established that the order impugned has been passed beyond the period of two years and similar point was con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground for issuing the order requesting to repay the entire duty credit availed by the petitioners. 15. The order impugned further states that the petitioners are requested to repay the entire duty credit availed by them. Thus, for all purposes, it is the demand made by the respondents to repay the SHIS scrip availed by the petitioners. 16. A demand notice or an unadjudicated recovery notice or a show cause notice are to be treated as akin, as show cause notices are issued seeking explanations from the petitioners by setting out the allegations. The demand notices are issued by informing the proposed decision arrived at based on the Rules, Regulations or Guidelines and asking the Addressee to comply with the demand and in such circumstances, the persons who receive the demand notice has an option to comply with the demand or to raise an objection in respect of such demand or to approach the Appellate Authority or Competent Authority for adjudication. 17. Thus, an audit objection culminated into an order of demand or recovery, per se, need not be adjudicated by the High Court at all circumstances. Such demand or recovery being original proceedings of the Authorities, adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicate factual aspects and also the legal grounds, including the point of limitation. When effective alternate remedy or opportunities are made available to the aggrieved persons, such adjudications need not be dispensed with by the High Court in a routine manner. In the event of adjudication of issues and in the absence of exhausting the alternate statutory remedies, it would not only be premature, but there is a possibility of miscarriage. Thus, at all circumstances, the aggrieved persons are expected to exhaust the alternate remedy contemplated under law. 22. The learned counsels for the petitioners urged this Court by stating that the point of limitation alone is sufficient to set aside the order impugned as it is passed beyond the period of two years, which is contemplated. Further, the Authorities have no jurisdiction or Authority to issue the impugned order. 23. This Court is of the considered opinion that the point of limitation sometimes is tricky issue, but it is not as if the dates are to be verified and the orders are to be set aside by holding that the order impugned is passed beyond the period of two years. The reckoning point, the date on which the cause arou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicated elaborately by the Competent Authorities as well as by the Appellate Authorities. Now the impugned order has been passed by the Original Authority by way of recovery without conducting any adjudication by providing an opportunity to the petitioners. Thus, the impugned orders cannot be construed as a final order for the purpose of considering the merits and also the legal grounds raised between the parties. 27. When it is not a final order, this Court is of an opinion that the Authorities must adjudicate the issues on merits. When the point of adjudication comes, then it is to be placed before the Competent Authorities for effective adjudication and to take a final decision by conducting an enquiry and by affording opportunities to the parties concerned. 28. In view of the fact that the order impugned is passed merely based on the audit objection without conducting any adjudication, this Court is not inclined to made any finding with reference to the merits as well as the other grounds raised with reference to the facts and circumstances of the case. All such facts and circumstances on merits are to be adjudicated based on the original documents, audit objections and o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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