- (1.) This writ petition registers a challenge to an order dated February 26, 2016 passed by the Commissioner, Durgapur Commissionerate confirming demands of excise duty and customs duty in sums of Rs.3,52,99,354/ - and Rs.6,24,07,996/ -, respectively; imposing penalty of equivalent sums and interest at the appropriate rates under the Central Excise Act, 1994 (hereafter the 1994 Act) and the Customs Act, 1962 (hereafter the 1962 Act); and, ordering recovery of the same from the petitioner.
(2.) A preliminary objection to the entertainability of the writ petition has been raised by Mr. Roy, learned advocate for the respondents. According to him, the Bench ought to refuse to hear the petitioner because of availability of an appellate remedy (under section 35B of the 1994 Act) that it has not pursued.
(3.) Mr. Sen, learned senior advocate representing the petitioner countered the objection by contending as follows : (i) The Commissioner acted without jurisdiction; (ii) Although the petitioner had responded to the show cause notice dated October 7, 2013 by submitting a detailed written reply, the Commissioner observed that the petitioner had failed to respond; (iii) The petitioner was not asked to show cause notice under section 114A of the 1962 Act and by imposing penalty thereunder, it was practically condemned unheard. Elaborating the first point, it was contended by Mr. Sen that four show -cause notices had been carried forward leading to a common order being passed by the Commissioner, Durgapur Commissionerate, impugned in this writ petition. However, the first two of such show -cause notices dated October 7, 2013 and April 29, 2014 had been issued by the Commissioner, Central Excise, Bolpur. The argument that has been advanced is that the Commissioner, Durgapur Commissionerate had no authority to decide the proceedings initiated by the show -cause notices issued by the Commissioner, Central Excuse, Bolpur and, accordingly, has acted without jurisdiction. Insofar as the second point is concerned, it was submitted that the show -cause notice dated October 7, 2013 issued by the Commissioner, Central Excuse, Bolpur was duly responded to by the petitioner by its reply dated January 21, 2014, received in the office of the Commissioner, Central Excise, Bolpur, on January 22, 2014. However, the Commissioner, Durgapur Commissionerate at paragraph 3.1 (page 5) of his order recorded that no written reply was submitted by the petitioner. It was, accordingly, contended that the points raised by the petitioner in such reply went unattended which, apart from being a glaring instance of non -application of mind, is in breach of natural justice. On the third point, attention of the Bench was drawn to the fact that although the petitioner was called upon to show -cause why penalty under section 112 of the 1962 Act shall not be imposed, which was duly countered in the reply, penalty under section 114A thereof has been imposed without the petitioner being put on notice in that regard and having any opportunity to meet the point. These, according to Mr. Sen, constitute exceptional reasons for which the writ court ought to entertain the writ petition.;