M/S.LAL TRADES AND AGENCIES PVT.LTD. V. COMMISSIONER,CENTRAL EXCISE AND CUSTOMS AND SERVICE TAX

WP(C)/15342/2016

AI Insights

The case involves a petitioner challenging an order dated 27.06.2016 by the Commissioner, Central Excise, Customs & Service Tax, Bhubaneswar, which was related to the non-provision of necessary documents for verification. The petitioner argued that the principles of natural justice were not followed, as the Commissioner proceeded without the documents, which were in possession of the Income Tax Department. The court noted that the petitioner had received the documents from the Income Tax Department post the impugned order and found no justification to entertain the writ application, given the availability of an alternative remedy through an appeal to the CESTAT.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 691521 (HC-ODISHA)
• Appeal Type: Others
• Pronouncement Date: 11-10-2016
• Assessment Year: misc
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P MOHAPATRA; S K ACHARYA
• Assessee Lawyers: J SAHOO
• Keywords: Appealable order; Central Excise; Income Tax Department; Natural Justice; Seized documents

Judgement Text

" W.P.(C) No.15342 of 2016 05. 10.11.2016 Heard Mr. J. Sahoo, learned Senior Advocate appearing for the petitioner, Mr. P. Mohapatra, learned Junior Standing Counsel for the Central Excise, Customs and Service Tax Department and Mr. S.K. Acharya, learned Senior Standing Counsel for t he Income Tax Department. Vide order dated 26.10.2016, the Income Tax Department have been imple aded as a party and learned Senior Standing Counsel for the Department have been requested to obtain instruction as to whether the petitioner had sought for release of the copies of the do cuments which are in possession of the Income Tax Department. Mr. Sahoo, learned Senior Advocate for the petitioner submits that the petitioner has applied for copies of the seized documents on 02.08.2016 and the Department pr ovided the same on 30.08.2016. Although challenge in the present writ application has been made to an order dated 27.06.2016 passed by the Commissioner, Central Excise, Customs & Service Tax, Bhu baneswar-II Commissionerate, Bhubaneswar in Order-In-Original No.BSR-EXCUS-002-COM-002-16-17 u nder Annexure-8, Mr. Sahoo, learned Sr. Advocate for the petitioner, inter alia, asserts that the principles of natural justice have not been complied with in the present case and drew our attention to the observations made in paragraph 2.0. of the impugned order and submits that w hereas the first date of appearance and hearing was fixed to 19.02.2016, the matter was adjour ned to 09.03.2016 and thereafter to 23.03.2016 and the hearing was closed but the Commissioner has taken a note of the fact that more than two months time have been granted by it but, the petitioner had failed to provide the necessary documents for their verification. Mr. Sahoo, learned Sr. Advocate for the petitioner further submits tha t although the last date of hearing was fixed to 23.03.2016, the impugned order was passed thr ee months thereafter on 27.06.2016. Consequently, if some further time has been granted to the petitioner, he could have possibly obtained necessary copies of seized documents from the Inc ome Tax Authorities for production before the Commissioner, Central Excise. Mr. Mohapatra, learned counsel for the Central Excise Department submi ts that since the petitioner failed to provide necessary documents during the period and faile d to reply to the show cause notice issued by the Department even after expiry of two and half years from the date of issue of show cause notice, the claim of the petitioner that the failu re on his part from producing the necessary documents on account of seizure by the Income Tax Department ought not to be accepted to be an adequate justification for interfering with the i mpugned order. Mr. Sahoo, learned Senior Advocate for the petitioner fairly admits th at the petitioner applied for copies of documents from the Income Tax Department after receipt of the impugned order under Annexure-8 and he has received copies thereof in the meanwhile. Admittedly, the impugned order is appealable to the CESTAT. In view of the fact that the petitioner now possesses the necessary do cuments obtained from the Income Tax Department which it seeks to rely upon, we find no justif ication in entertaining the present writ application since efficacious alternative remedy by w ay of filing first appeal is available to the petitioner. Accordingly, while refrain from entertaining the writ application, we direct that if the petitioner files the statutory appeal within a period of four weeks from t oday along with a petition for condonation of delay in filing the appeal, the Appellate Author ity shall do well to consider the same especially keeping in view the fact that the petitioner had approached before the High Court against the impugned order and waive the period of delay , if any, and proceed thereafter in accordance with law. Nothing stated in this order shall in any manner influence the outcome of the appeal and the petitioner is free to raise all such c ontentions that may be available to him in law as well as brings such documents on record as m ay be advised for consideration of the First Appellate Authority. With the aforesaid observations and directions, the writ application i s disposed of. Original copy of the impugned order under Annexure-8 be returned to th e learned counsel for the petitioner on being replaced by the authenticated Xerox copy thereof for filing of statutory appeal. Free copy of this order be handed over to the learned counsel for the Income Tax Department and the learned counsel for the Central Excise Department for necessary communication and compliance. Urgent certified copy of this order be granted on proper application. .. I. Mahanty , J. ....... Biswajit M ohanty, J. 4 "