TMI Blog2021 (12) TMI 1486X X X X Extracts X X X X X X X X Extracts X X X X ..... equest could have been considered sympathetically and bearing in mind all these surrounding circumstances. In absence of such consideration on the part of the respondent, the Court needs to intervene. Issuance of show cause notice without pre-consultation notice - HELD THAT:- The CBEC Master Circular dated 10.03.2017 provides for the preconsultation as a mandatory requirement as can be traced to Section 83 of the Finance Act. The instructions issued by the CBEC as per Section 37(B) of the Central Excise Act would be binding on the authorities of the department. The statutory circulars would be binding upon the department so long as they are not inconsistent with statutory provisions nor mitigate the rigor of the law - In the instant case also, there is no adherence to the said circular by adapting the pre-consultation as contemplated under the circular. This itself is the reason for the Court to quash and set aside the show cause notices. Thus, not only on the ground of absence of pre-consultation before issuance of the show cause notice but also from the discussion held hereinabove in respect of need for the intervention on nongrant of any installment for making payment, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme after claiming the deduction of pre-deposite of INR 11,10,675/-. 3.3. The petitioner was unable to make payment as per the acknowledgment. It once again filed another form SVLDRS-1 on 31.12.2019. Other particulars of the declaration like amount of unpaid tax liability admitted and balance amount payable remained the same. On 20.01.2020, after filing the declaration on 31.12.2019, the petitioner addressed a letter to the Joint Commissioner of SVLDR Committee and informed that they were unable to make payment in connection with the declaration dated 21.11.2019 and another declaration dated 31.12.2019. 3.4. On 22.01.2020, in response to the said declaration of the petitioner under Rule 6 of the SVLDR Scheme Rules, 2019, the Joint Commissioner of SVLDRS Committee verified the declaration and form No. SVLDRS-3 was issued. On 29.01.2020, a mandate form for making the payment of unpaid tax liability was issued to the petitioner and on 30.06.2020 the extension was granted vide Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance, 2020. This was sequel to corona outbreak and the date was extended to 30.06.2020. 3.5. On 01.07.2020, the petitioner addressed a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e thought just and proper, in the facts and circumstances of the present case. 4. The affidavit-in-reply on behalf of the respondent nos.2 to 4 has been filed wherein it has given the details of declaration filed by the petitioner for payment of the tax dues against the SVLDR Scheme. It is further the say of the respondent that vide communication dated 17.08.2020, it was communicated that there was no provision of payment of tax dues in SVLDR Scheme by way of installment and the scheme was extended till 30.06.2020, if no payment has been made against the tax dues, they will not be in a position to avail the benefit of SVLDRS, 2019. 4.1. It is also the say of the respondent that SVLDRS-3 for the sum of Rs.53,57,477.50/- was issued on 22.01.2020, much before the stage of lockdown on 22.03.2020. The declarant has requested to issue the same against ARN so that they can again generate NEFT mandate for payment of tax dues. The petitioner had wrongly given the reason of covid-19. It is further the say of the respondent that CBEC Master Circular No. 1053/02/2017-CX dated 10.03.2017 provides for the consultation of the noticee before the issuance of show cause notice where the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that may be faced by the litigants in filing petitions/applications/suits/appeals and all other proceedings. On 23.03.2020 the Court directed the extension of period of limitation in all proceedings before the Courts/Tribunals including the Supreme Court. Thereafter, the second surge also since had a devastating effect, the Supreme Court Advocates on Record Association had intervened in the suo motu petition and the Court passed the following order: - We also take judicial notice of the fact that the steep rise in COVID-19 Virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused by the sudden and second outburst of COVID-19 Virus, thus, requires extraordinary measures to minimize the hardship of litigant public in all the states. We, therefore, restore the order dated 23rd March, 2020 and in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders. It is further clarified that the period from 14th March, 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed to the Joint Commissioner on 01.07.2020, the petitioner had pleaded his financial hardship due to non-receipt of the amount from the various government entities. List of amount due also had been provided to the officer concerned which is as follows: - Sr. No. Entity Name: Inv Date Date Total Due 001 A P M C Market 14 28.09.2011 44,02,172 002 Exe off Rohtak 21 03.02.2016 9,55,800 003 Meerut Municipal Corporation 49 25.03.2017 5,65,870 004 Nagar Sadanseva Vapi 4 03.05.2014 50,000 005 Kanakpur Kansad Municipality 39 03.01.2017 7,66,272 Gujarat Urban Development Mission (GUDM) 006 GUDM Bharuch Drainage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g dues. It also cannot be overlooked that there was a statutory period of limitation provided. The Apex Court needed to exercise their power under Article 142 read with Article 141 of the Constitution of India and the prescribed period of limitation for initiation of the proceedings and termination of the proceedings had been extended. This was done soon after the pandemic, in a suo motu proceedings, and the same had been extended upto 02.10.2021. 9.1. If the limitation period in every suit has been extended for initiation and termination of the proceedings, noticing the worldwide phenomena of pandemic due to COVID-19 virus and the decision of the Apex Court rendered in case of Small Scale Industrial Manufactures Association (Regd.) vs. Union of India and Others [2021 SCC OnLine SC 246] according to us, this scheme which is basically brought for giving a quietus to the disputes existing between the parties and hence, the request of the petitioner for allowing him to make the payment under the SVLDR Scheme needs to be considered. On its own, the authority concerned had extended the same under sub-section (5) of Section 127 upto 30.06.2020 and for the Union Territory of Jammu and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 10.03.2017 provides for the preconsultation as a mandatory requirement as can be traced to Section 83 of the Finance Act. The instructions issued by the CBEC as per Section 37(B) of the Central Excise Act would be binding on the authorities of the department. The statutory circulars would be binding upon the department so long as they are not inconsistent with statutory provisions nor mitigate the rigor of the law. 14. The decision in case of Commissioner of Central Excise, Bolpur vs. Ratan Melting Wire Industries [(2008) 13 SCC 1] which later on was followed in State of Tamil Nadu vs. India Cements Ltd. [(2011) 13 SCC 247] is heavily relied upon. This Court in case of Dharamshil Agencies vs. Union of India [SCA 8255/2019, decided on 23.07.2021] has held that the show cause notice without issuance of pre-consultation is null and void. 15. An amount due under the show cause notice is Rs. 1,34,16,629/- on 24.09.2021 along with interest under Section 75 of the Finance Act, penalty and late fees. The Board has made pre-show cause notice consultation mandatory for the Principal Commissioner/Commissioner prior to the issuance of show cause notice in case of demand of duty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on mandatory for the Principal Commissioner/Commissioner prior to the issuance of show-cause notice in cases involving the demands of duty above Rs.50 lac and that such consultation was to be done by the adjudicating authority with the assessee as an important step towards the trade facilitation and for promoting necessary compliance, as also to reduce the necessity of issuing show-cause notice. Despite such mandatory requirement of the pre-show-cause notice consultation at the instance of the respondent authority, in utter disregard of the said mandate, and without considering the laudable object behind issuing such circular, the respondents issued the impugned pre-show-cause notice consultation dated 12.4.2019 delivering the same to the petitioner assessee at 13.55 hours and calling upon them to remain present before the respondent No.2 at 16.00 hours. The petitioners having requested for reasonable time for the effective consultation, without considering the said request, the respondent No.2 issued the show-cause notice on the same day i.e. on 12.4.2019. Such a high-handed action on the part of the respondent No.2, not only deserves to be deprecated but to be seriously viewed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al before him the conclusion arrived at by the Income-tax Officer was correct or dismissing the petition because otherwise the party would get unfair advantage. The power to quash an order under Article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room for the same authority to be directed to deal with it. But in the circumstances of a case the Court might take the view that another authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of the authority which has the jurisdiction is vitiated by circumstances like failure to observe the principles of natural justice the Court may quash the order and direct the authority to dispose of the matter afresh after giving the aggrieved party a reasonable opportunity of putting forward its case. Otherwise, it would mean that where a Court quashes an order because the principles of natural justice have not been complied with it should not while passing that order permit the Tribunal or the authority to deal with it again irrespective of the merits of the case. ... 11. In view of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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