Heard Mr.P.Mohapatra, learned Standing counsel for the Central Excise, Customs & Service Tax for the petitioners and learned counsel appearing for the opposite party.
Petitioners have filed this application to review/modification of the order dated 15.12.2016 passed in W.P.(C) No. 21861 of 2016.
The writ petition was disposed of at the stage of admission on the submission of the learned counsel for the writ petitioner. The relevant documents are not supplied by opposite party No.3 while issuing pre-show cause notice fixing the date to 18.11.2016 for consultation vide Annexure-3. Pursuant to the said notice the petitioner-company sought for a clarification and requested to furnish all the details of allegation and computations. After receiving the said request letter the details were furnished to petitioner-company by fixing another date i.e. 29.11.2016 for such consultation meeting along with a draft demand show cause notice. In the said draft demand show cause notice it was reflected as Annexures-A to E. However the petitioner-company did not appear on 29.11.2016 seeking further adjournment for which the show cause notice Annexure-1 was issued referring to Annexures-A to C (18 sheets).
The learned counsel for the review-petitioner submits that the writ-petitioner suppressed the fact that the documents i.e. A to E includes the audited balance sheet of the writ petitioner. Since those documents are his balance sheet the authority in the show cause notice only supplied the documents i.e. Annexures-A to C and such suppression of fact by the wr it petitioner could not be clarified by the counsel for the Department at the time of admissio n as he has not received instruction. Accordingly he seeks modification of the order.
The learned counsel for the writ petitioner submits that those two documents a re belongs to the writ petitioner however they sought further clarification from the Department as consultation meeting was not completed before issuing show cause notice. The writ petitioner has approached the Court in view of instruction issued by the Central Board of Excise and Customs dated 8th July, 2016 wherein pre-show cause notice consultation with the Principal Com missioner/Commissioner prior to issue of show cause notice in cases involving demands of duty above Rs.50 lakhs (except for preventive/offence related SCNs) has been made mandatory. The demand cum show cause notice was issued without affording opportunity of pre-consultation.
Considering the above rival submission of the parties it appears that the pre show cause notice for consultation meeting was issued fixing the date on 11.11.2016 and on 18. 11.2016 to the writ petitioner however he has taken time repeatedly. The writ petitioner intentionally suppressed the fact that those two documents are his audited balance sheets. The draft demand notice was issued along with such pre-show cause notice for consultation fixing the date to 29.11.2016 vide Annexure-6 of the writ petition. Since the writ petitioner has suppressed such fact to the Court accordingly the present application is allowed by recalling the order dated 15.12.2016 passed in W.P.(C) No. 21861 of 2016. As the show cause notice was only issued to the writ petitioner it is open to him to file his show cause which shall be considered in accordance with the law.