SHEET WP No.506 of 2017 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE SWASTIK OIL REFINERY PRIVATE LIMITED VERSUS UNION OF INDIA & ANR BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK Date : 31st August, 2017.
Appearance: Mr.R.K.Chowdhury, Adv.Mr.P.Chatterjee, Adv.For the petitioner.
Mr.Somnath Ganguli, Adv.Mr.Bhaskar Prasad Banerjee, Adv.For the respondents.
The Court :- A show cause-cum-demand notice dated August 8, 2016 is under challenge in the present writ petition.
Learned Advocate for the petitioner submits that, although the petitioner has replied to the show cause notice, the same has not been disposed of till date.
He submits that, the authorities have invoked the extended period of limitation as would appear from the impugned show cause-cum-demand notice.
He submits that, if a claim made by the Department in the show cause notice is barred by limitation, then such show cause notice has to be treated without jurisdiction and a writ petition is in respect thereof is maintainable.
In support of such contention, he relies upon 1977 (107) ITR253Cal, (Jiyajeerao Cotton Mills Ltd.-Versus- Income Tax Officer & Ors.).He relies upon an unreported decision of the Court dated May 5, 2016 rendered in WP No.1280 of 2001 relating to Section 147 of the Income Tax Act, 1961 and submits that, in the facts of the present case where the impugned show cause notice records that, the petitioner had filed the monthly returns, the question of suppression does not arise.
Therefore, the authorities could not have invoked the extended period of limitation envisaged under Section 11A(4) of the Central Excise Act, 1944.
He submits that, the period involved is of 2011 to 2014.
The impugned show cause notice was issued on March 31, 2016.
The Department is represented.
Learned Advocate for the Department submits that, the question of limitation is a mixed question of fact and law.
It cannot be said by reading impugned show cause-cum-demand notice that, the claim made by the Department is barred by limitation.
I have considered the rival contentions of the parties and the materials made available on record.
Section 11A(4) of the Central Excise Act, 1944 contemplates that where any duty of excise has not been levied or paid or has been short levied or short period or erroneously refunded by the reason of a) fraud; b) collusion; or c) any wilful mis-statement; or d) suppression of facts; or e) contravention of any of the provisions of the Act of 1944 or the rules made thereunder with intent to evade payment of duty, the authorities shall within five years from the relevant date, to serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under Section 11AA and a penalty equivalent to the duty specified in the notice.
Under Section 11A(4) the Central Excise Officer has a period of five years from the relevant date for the issuance of show cause notice if the events tabulated in such sub-section and upon the clauses thereunder being fulfilled.
In the present case, the impugned show cause-cum-demand notice is dated March 31, 2016 and it relates to the period from April 2011 to May 2015.
It is within the time span of five years stipulated under Section 11A(4) of the Act of 1944.
The impugned show cause-cum-demand notice claims that, the petitioner is guilty of suppression of relevant facts to evade payment of duty.
It alleges that, the petitioner had suppressed material facts by not submitting any document to the Department.
The petitioner has submitted a reply to the show cause notice.
A period in excess of one year has elapsed since the issuance of the impugned show cause-cum-demand notice and the reply thereto dated June 30, 2016.
The proceedings are yet to be disposed of.
At this stage, the writ petition sought to be maintained on the ground that, the impugned show cause-cum-demand notice is ex facie bad being without jurisdiction since the show cause notice is for a period which is barred by limitation.
Jiyajeerao Cotton Mills Limited (supra) is of the view that, where the question, whether any particular proceeding has become barred by lapse of time, depends upon investigation of certain facts or determination of certain facts, then it is proper that, such a question should be agitated before the forum created under the particular statute.
But, where the action of an officer is barred on admitted facts or on the face of it, then as the jurisdiction of the officer to act depends on initiation of the proceeding within the time, in such a case resort to Article 226 for obtaining relief is not inappropriate.
In the facts of the present case, it cannot be said, by reading the impugned notice that, on the date of the issuance, the period specified therein is barred by the limitation prescribed.
Tinplate Company of India Limited (supra) is rendered in context of Section 148 of the Income Tax Act, 1961.
In the facts of that case, it was found that, the assessee was not guilty of suppression of any material fact before the authorities.
In the present case, the allegation is that, the petitioner is guilty of suppression of material fact.
This allegation is an issue of fact.
It is required to be considered by the adjudicating authority.
On the basis of the materials placed before the Writ Court, it cannot be said that such an issue has to be decided in favour of the assessee.
So far as the point of limitation is concerned as noted in Jiyajeerao Cotton Mills Limited (supra).when the question of limitation is mixed question of fact and law and it requires a further investigation and determination, in such facts a writ petition is not maintainable.
In the facts of the present case, ex facie, it cannot be said from the impugned show cause notice that, the claim made against the petitioner in the show cause-cumdemand notice is barred by limitation.
Since the question of limitation cannot be answered conclusively on the basis of the materials made available on record, at least the same does not appear from show cause-cum-demand notice, it cannot be said the authorities have acted beyond the jurisdiction in issuing the impugned notice.
Moreover, the notice is dated March 31, 2016.
The claim is for the period from 2011 to 2015.
The same is within the period of five years from the relevant date contemplated under Section 11A(4) of the Act of 1944.
Furthermore, it is alleged that, the petitioner is guilty of suppression of material facts at the time of assessment.
Clause (d).if not anything else, of Section 11A(4) of the Act of 1944 stands attracted.
The present writ petition appears to be an attempt by the petitioner to stall the adjudication proceedings on specious pleas.
The instant writ petition is casuistic.
It would be appropriate to dismiss the writ petition and put the writ petitioner on terMs.The writ petitioner will pay costs assessed at Rs.2,00,000/(two lakhs) to the West Bengal State Legal Aid Services, Kolkata within a week from date.
The writ petitioner is directed to produce documentary evidence of payment of such costs before the adjudicating authority.
The adjudicating authority will commence the adjudicating process on and from September 11, 2017 on a day to day basis and will conclude the same as expeditiously as possible.
The adjudicating authority will not grant any adjournment to any of the parties on any pretext whatsoever including the absence of the learned Advocate representing the parties.
In the event of default of payment of the costs as directed herein, the adjudicating authority will proceed with the proceedings in the manner as directed.
It will proceed to recover the costs assessed herein from the petitioner and pay the same upon realization to the authority noted herein.
WP No.506 of 2017 is disposed of.
No order as to costs.
(DEBANGSU BASAK, J.) snn