TMI Blog2023 (10) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... on whatsoever on any of the documents. The petitioner would be justified in placing reliance on the decision of this Court in MONIT TRADING PRIVATE LIMITED VERSUS UNION OF INDIA ORS. [ 2023 (7) TMI 911 - BOMBAY HIGH COURT] in which in identical circumstances and being confronted with a similar show cause notice, the action on the part of the department was set aside. Similar view has been taken by this Court in the case of NIRAKAR RAMCHANDRA PRADHAN VERSUS UNION OF INDIA ORS. [ 2023 (9) TMI 1176 - BOMBAY HIGH COURT] which was a case wherein similar circumstances the department attempted to justify the impugned order by filing a detailed affidavit as sought to be done in the present case. The Court had expressed its displeasure in the department adopting such approach. Thus, time and again the department is not required to be told by the Court as to what would be the position in law as also the correct approach in law, the officers needs to follow - there are no manner of doubt that the impugned order would be required to be set aside. The impugned show cause notice dated 22 August, 2022 is quashed and set aside - petition allowed. - G. S. KULKARNI JITENDRA JAIN, JJ. For the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ujarat Special Civil Application No. 6315 of 2022 dated 06.04.2022 to contend that such an action was held to be an action in breach of principles of natural justice. 5. The petitioner has contended that despite such clear reply to the show cause notice, the Designated Officer proceeded to pass an order dated 17 October, 2022 cancelling the registration of the petitioner on reasons which, according to the petitioner, are totally arbitrary. It is submitted that the registration is also cancelled with retrospective effect from 10 April, 2021. The reasons as set out in the impugned order are required to be noted, which reads thus: You could not explain the reason for not being presented at the time of visit at P.O.B and A.P.O.B. of MAKERSBURRY INDIA PRIVATE LIMITED, there were no any business activity found nor any stock found. Both the Directors or any Authorized Legal Representative not represented the case or could furnish any statement satisfactorily. The reply submitted by the taxpayer dt. 25/08/2022 is not relevant to the point raised in show-cause notice issued by this office. Hence, the same is not acceptable to this office. The effective date of cancellation of your registrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority, it appears that the appellate authority proceeded to pass the impugned order without considering such materials, thereby rejecting the petitioner s appeal. The only reasons which can be found in the order passed by the appellate authority are contained in paragraph(viii) to (x), which reads thus: (viii) Thus from the above facts and circumstances, it is clear that the Appellant had failed to prove the business of goods being carried out. Therefore, the statement of facts, the grounds of appeal, prayer and contention of the appellant is devoid of the facts and not just and proper. (ix) The intent of the appellant is proved in respect of Registration obtained by means of fraud, wilful misstatement or suppression of facts. (x) Hence, the impugned order was found just and proper with cancellation of the registration certificate ab-initio, i.e., from 10/04/2021 is found liable to be confirmed. 11. We find that the appellate authority has merely referred to the documents which were submitted. There is no discussion whatsoever to come to such conclusion and more particularly after discussing the materials as submitted by the petitioner, as noted by us in the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eive as to how such contents of the notice could be responded when no reasons to support such allegation were provided in the show cause notice. The order dated 17 October, 2022 passed by the designated officer cancelling the petitioner s registration was inherently defective, as again no reasons were furnished dealing with the case as set out by the petitioner in the reply as filed to the show cause notice. There is no discussion whatsoever on any of the documents. Things did not stop at this, as the appellate authority before whom all such materials were furnished again proceeded on total non-application of mind of the materials before it. As noted above, several documents although were submitted by the petitioner for consideration of the appellate authority, there is not a semblance of consideration of any of these documents, much less any discussion on these documents so as to consider the case of the petitioner against cancellation of its registration. 15. In the aforesaid circumstances, we are of the clear opinion that the petitioner would be justified in placing reliance on the decision of this Court in Monit Trading Pvt. Ltd. (supra) in which in identical circumstances and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der restoration of the petitioner s registration, with liberty to the respondents to follow the due procedure in law, in the light of the observations as made by us, in the event if any fresh action is intended to be taken against the petitioner. Ordered accordingly. 12. Although we have granted the above relief, we are not inclined to rest here, when in exercise of our writ jurisdiction, we have come across something which would disturb our judicial conscience. Having considered the facts of the case, we would be failing in our duty if we do not comment on the unfair approach of the officers who have passed the orders as referred by us. Firstly, the approach of the Superintendent at whose instance the proceeding commenced and who issued the show cause notice; secondly, of the Assistant Commissioner, Division-X, CGST and Central Excise, Mumbai, East, who passed the order of cancellation of petitioner s registration dated 31 January, 2022; and thirdly, of the Joint Commissioner (Appeals-II), CGST and Central Excise, Mumbai who passed the impugned orders on the petitioner s appeal. 13. We would normally not make such observations, however, in our opinion, the present case is gross. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar view has been taken by this Court in the case of Nirakar Ramchandra Pradhan vs. Union of India Ors. (supra), which was a case wherein similar circumstances the department attempted to justify the impugned order by filing a detailed affidavit as sought to be done in the present case. The Court had expressed its displeasure in the department adopting such approach. The following observations as made by the Court are required to be noted, which reads thus: 9. For the aforesaid reasons, the impugned order is required to be held to be illegal and a total nullity. It is well settled principles of law that cancellation of registration certainly meets the assessee with a civil consequence. The petitioner s registration could not have been cancelled without any reason, as no reasons were neither set out in the show cause notice nor set out in the impugned order. The show cause notice and the impugned order suffered from an incurable defect which compels us to exercise the discretionary jurisdiction under Article 226 of the Constitution of India to quash and set aside the show cause notice as also the impugned order based on such illegal show cause notice. 10. 11. Before parting, we n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and set aside. The consequential order dated 17 October, 2022 cancelling the petitioner s registration as also the order dated 26 April, 2023 passed by the appellate authority quashed and set aside. (ii) The respondents are at liberty to initiate fresh proceedings against the petitioner, however, with a direction to the designated authority that in the event a fresh show cause notice is issued to the petitioner, it ought to be in accordance with law, setting out appropriate reasons. The show cause notice be adjudicated in accordance with law after granting an opportunity to the petitioner, to place on record all his contentions, and after granting personal hearing to the petitioner. (iii) The show cause notice be adjudicated as expeditiously as possible preferably within four weeks from the date of filing of the reply as may be directed to be filed by the petitioner. (iv) All contentions of the parties in that regard are expressly kept open. (v) We also clarify that we have not precluded the respondents from exercising any other powers as may be available to the respondents in law as the facts and circumstances may warrant. Our observations are confined only to the show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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