Subrata Talukdar, J. - (1.) Party/parties are represented in the order of their name/names as printed above in the cause title.
(2.) Mr. Raghavan, learned Counsel appearing for the petitioner/assessee, submits as follows : (a) By an order dated 15th December, 2005 of the Commissioner of Central Excise, Kolkata - II/Respondent No. 1 to this writ petition addressed to the petitioner/assessee, the petitioner was directed to show-cause as to why a special audit as provided under Section 14AA of the Central Excise Act, 1944 (for short, the 1944 Act) shall not be carried out in respect of the transactional years 1999 to 2005. (b) Assailing the order dated 15th December, 2005, the petitioner/assessee arrived before this Court by way of a Writ Petition being WP No. 2269/2005. (c) By the order dated 6th December, 2016 the Hon'ble Court was pleased to notice that under Section 14AA of the 1944 Act, the Commissioner had two obligations. First, the obligation to pass a reasoned order. Second, to comply with the principles of natural justice. Accordingly, post the order dated 6th December, 2016 (supra), the matter went back to the Commissioner for fresh consideration in the light of the observations made in the solemn order. (d) The petitioner made exhaustive written and oral submissions before the Commissioner/Respondent No. 1 to demonstrate that there were no reasons to believe that the credit of duty availed of/utilised by the petitioner/assessee for the respective transactional years 1999 to 2005 (supra) were outside the normal limits. (e) Therefore, the Commissioner/Respondent No. 1 was under a legal obligation only to comply with the twin obligations specified in the order dated 6th December, 2016 (supra) but, also to apply his mind with regard to the requirement of Section 14AA of the 1944 Act on the basis of the materials made available by the petitioner/assessee which gave ample evidence of the fact that there were no reasons to believe that the credit availed of had exceeded the outer limit. (f) Referring to the Discussion and Findings at paragraph 4.0 of the order impugned dated 6th June, 2017, Mr. Raghavan submits that the Commissioner had only handled two points. First, the point of limitation as discussed under Section 11A(18) of the 1944 Act. Second, on an ex facie erroneous perception of the availment of credit beyond the outer limit by the petitioner/assessee, directed a special audit of the assessee by a coequal functionary namely, the Commissioner (Audit-I Commissionerate). (g) On the first finding of the Respondent No. 1, Mr. Raghavan does raise any dispute at this stage. (h) On the second finding, Mr. Raghavan points out that the order of the Commissioner dated 6th June, 2016 has merely recorded the submissions of the petitioner/assessee without indication of application of mind on the facts made available to him disputing any contravention of Section 14AA of the 1944 Act. (i) With regard to his second argument, Mr. Raghavan draws the attention of this Court to a paragraph of the Discussion and Findings (supra) of the Commissioner vide the order dated 6th June, 2016 which reads as follows : "I am also inclined to go with observations of the Hon'ble High Court, Calcutta and I do believe that as per the available records, there were huge over utilisation of credit by the noticee in the later year than in the previous year and accordingly pass the follows order". (j) On the strength of the above submissions, Mr. Raghavan argues that the order impugned falls woefully short of the requirement to give sufficient reasons as predicated by the solemn order dated 6th December, 2016. Mr. Raghavan, therefore, submits that the order impugned be set aside and, in the interregnum pending this petition, be stayed.
(3.) Mr. Das, learned Senior Counsel, appearing on behalf of the respondent nos. 1 and 3 and Mr. Ganguly, learned Counsel appearing on behalf of the respondent no. 2 are granted the opportunity to respond to Mr. Raghavan's submissions on the next date. Let the matter next appear under the same heading 'Court Application' at the top on 17th January, 2018.;