Case Law Details
Jagdish Das Vs Union of India (Calcutta High Court)
Heard learned Advocates appearing for the parties. In this writ petition, petitioner has challenged the impugned show-cause-cum-demand notice dated 23rd April, 2021 issued by the CGST Authority concerned on the ground that the same was issued without issuing pre-show cause notice consultation as per Circular No.1076/02/2020 CX dated 11th November, 2020 issued by the Central Board of Indirect Taxes and Customs, relating to high pitch assessment involving due above Rs.50 lakhs and admittedly in this case the demand involved is about 50 lakhs, and it is mandatory as per Clause 5 of the said Circular dated 19th November, 2020 to issue pre-show-cause notice consultation.
Learned Advocate appearing for the respondents/CGST Authority opposes this writ petition by contending that there is subsequent Circular issued by the Board dated 11th November, 2021 according to which pre-show-cause notice consultation is not mandatory but on perusal of the subsequent Circular of the Board dated 11th November, 2021, I find that though the said pre-show- cause notice consultation to the noticee is not mandatory but it does not wholly exclude issuance of notice of pre-show-cause notice consultation, which means at least it is directory and discretionary and discretion has to be exercised by the authority in a judicious and reasonable manner and the respondent authority concerned cannot exercise his power of discretion in a discriminatory or arbitrary manner or without giving any reason for not exercising his power of discretion in favour of the noticee. I further find that the aforesaid Circular dated 11th November, 2021, no where says that it is retrospective in nature. It is well settled principle of law that if any person who is enjoying any benefit under any Statute/Circular/Notification it cannot be taken away retrospectively unless the said Statute/Circular/Notification expressly specifies thatthe same is retrospective in nature. Considering the submission of the parties and relevant provision of law, I am of the view that the petitioner has been able to make out a prima facie case for an interim order and matter requires hearing since questions of law are involved in the matter. Respondents are directed to file affidavit-in- opposition within three weeks. Petitioner to file reply thereto, if any, within two weeks thereafter. List this matter for final hearing after six weeks. The respondents concerned shall not proceed with the impugned show-cause-notice dated 23rd April, 2021 till the disposal of the writ petition. At the time of hearing, parties should be ready with the short written notes of arguments.
