Calcutta High Court (Appellete Side)M/S. J. S. Pigments Private Limited & Anr vs Commissioner Of Cgst & Central Tax on 17 March, 2022Author:T.S.SivagnanamBench:T.S. Sivagnanam,Hiranmay BhattacharyyaItem No.1.\n             IN THE HIGH COURT OF JUDICATURE AT CALCUTTA\n                      CIVIL APPELLATE JURISDICTION\n                             APPELLATE SIDE\n\n                               HEARD ON: 17.03.2022.\n\n                         DELIVERED ON:17.03.2022\n\n                                     CORAM:\n\n              THE HON'BLE MR. JUSTICE T.S. SIVAGNANAM\n                                AND\n         THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA\n\n                              MAT 340 OF 2022\n                                    WITH\n                           I.A. NO.CAN 1 OF 2022\n\n            M/S. J. S. PIGMENTS PRIVATE LIMITED & ANR.\n                              VERSUS\n COMMISSIONER OF CGST & CENTRAL TAX, HOWRAH COMMISSIONERATE &\n                               ORS.\n\nAppearance:-\nMr. P. K. Das,\nMr. Roshan Sengupta                             ......for the appellants\n\n\nMr. Bhaskar Prasad Banerjee,\nMr. Tapan Bhanja                                ..   for respondents.\n\n\n                                   JUDGMENT(Judgment of the Court was delivered by T.S.SIVAGNANAM, J.)21.      We have heard Mr. P. K, Das, learned counsel appearing for\n\nthe appellants and Mr. Bhaskar Prasad Banerjee, learned standing\n\ncounsel appearing for the revenue.2.      This appeal is directed against the order dated 7 th March,\n\n2022 in W.P.A. No.2692 of 2022. The said writ petition was filed\n\nby the appellants praying for issuance of writ of mandamus to\n\nquash the order dated 28th January, 2022 and the show cause\n\nnotice dated 4th September, 2017 issued by the second respondent;\n\nfor   a   writ    of     declaration   to       declare   the     order   dated   28 th\n\nJanuary, 2022 and the show cause notice dated 4 th September, 2017\n\nas invalid and for a direction upon the respondent nos.2 and 3\n\nto return non-relied upon documents (Non RUDs) and relied upon\n\ndocuments (RUDs) as mentioned in the seizure list dated 12 th\n\nSeptember,        2017     and   to    prohibit       the       respondents       from\n\nadjudicating the show cause notice.                 The learned Writ Court by\n\nthe impugned order dismissed the writ petition holding that the\n\norder     dated     28th    January,    2022       does     not    call    for    any\n\ninterference.      Challenging    the   said       order,    the    appellants    are\n\nbefore us.33.    The learned counsel appearing for the appellants has drawn\n\nour attention to Rule 24A of the Central Excise Rules, 2002 (for\n\nbrevity "Rules"), which deals with return of records.                        It is\n\nsubmitted that during the search and seizure operations, several\n\nrecords from the appellants' business premises were seized and\n\nin terms of Rule 24A, all documents, which are not relied upon\n\ndocuments for issuance of show cause notice under the provisions\n\nof theCentral Excise Act, 1944(for brevity "the Act") and the\n\nRules framed thereunder shall be returned within 30 days from\n\nthe date of issuance of the show cause notice or within 30 days\n\nfrom the date of expiry of the period of issuance of the show\n\ncause notice.       It is further submitted that the proviso in Rule\n\n24A states that if the Central Excise Officer desires to retain\n\nthe documents, then an order to the said effect has to be passed\n\nby   the   Principal     Commissioner    of    the   Central    Excise      or   the\n\nCommissioner of the Central Excise, as the case may be.                      It is\n\nsubmitted that the second respondent had violated Rule 24A and\n\nthough     the   show   cause   notice   was   issued   as     early   as   on   4th\n\nSeptember, 2017, the documents, which are not relied upon for\n\nissuance of the show cause notice have not been returned to the\n\nappellants, which had compelled the appellants to approach this4Court on two earlier occasions and the present impugned order\n\nwas passed in the third writ petition filed by the appellants.\n\nFurther, the learned counsel submitted that no case has been\n\nmade out for invoking the extended period of limitation underSection 11Aof the Act.    It is further pointed out that unless\n\nand until the documents are returned to the appellants, they\n\nwill not be in a position to submit an effective reply to the\n\nshow cause notice thereby denying them reasonable opportunity.4.   The learned counsel further submitted that though there was\n\na prayer in the writ petition to quash the show cause notice, in\n\nthis appeal the appellants do not wish to press the said relief\n\nsought for.   The said submission is placed on record.5.   The learned standing counsel for the respondents submitted\n\nthat the order dated 28th January, 2022 passed by the second\n\nrespondent is a speaking order passed after due application of\n\nmind and the authority should be permitted to adjudicate the\n\nshow cause notice.56.   After having heard the learned counsels for the parties and\n\nperused the materials placed on record, we are of the view that\n\nthe challenge to the show cause notice was rightly rejected by\n\nthe learned Writ Court and therefore, to that extent the order\n\npassed in the writ petition stands affirmed.7.   The second contention is with regard to the applicability\n\nof Rule 24A of the Rules to the case on hand.           In our considered\n\nview, it will be too late for the appellants to now harp upon\n\nthe 30 days' time limit for returning the documents as it is the\n\nappellants, who approached this Court not once but thrice for\n\ncertain reliefs and in W.P. No.9985 of 2021 direction was issued\n\nto the authority to pass a speaking order on the request made by\n\nthe appellants.      Thus, the order dated 28th January, 2022 having\n\nbeen passed in accordance with the directions issued by this\n\nCourt in the writ petition, the question of now invoking the 30\n\ndays' time limit under Rule 24A does not arise.8.   With   regard    to   whether   the   department   was   entitled   to\n\ninvoke the extended period of limitation underSection 11Aof\n\nthe Act, it is not purely a question of law but a mixed question6of law and fact and it is for the appellants to agitate the same\n\nwhile submitting reply to the show cause notice.                We take note\n\nof the submission of the learned counsel for the appellants that\n\nif the appellants are not afforded reasonable opportunity to\n\nexamine the documents, they will not be in a position to submit\n\nan effective reply to the show cause notice.                 However, we wish\n\nto add a caveat to this submission that while it may be true\n\nthat   the   appellants   should   have     an   effective    opportunity   to\n\nsubmit   a   reply   to   the   show    cause    notice,     that   would   not\n\nautomatically entitle the appellants for return of the documents\n\nto them as the adjudication is yet to commence.9.     Therefore, we are of the view that if the appellants are\n\npermitted     to   examine   the   documents      in   the    office   of   the\n\nrespondents    and   permitted     to   take     photostat    copies   of   the\n\nrelevant pages of the documents at the cost of the appellants\n\nand thereafter if the appellants are given time to submit reply\n\nto the show cause notice, it would fulfill the principles of\n\nnatural justice.710.   In     the      result,    this        appeal         is   partly     allowed          while\n\naffirming       the    order    passed       by       the   learned       Single    Bench      in\n\nrejecting the challenge to the show cause notice.11.   With      regard    to     the     relief         sought      for    return       of     the\n\ndocuments,       the    same     cannot       be       granted      at     this    stage       as\n\nadjudication is yet to commence.                       However, we direct that the\n\nsecond respondent shall permit the authorised representative of\n\nthe appellants to peruse all the documents, which have been\n\nreferred to in the show cause notice and in the order dated 28 th\n\nJanuary, 2022 and wherever required, permit the appellants to\n\ntake photostat copies of the same at their costs.12.   The second respondent shall grant 10 clear days' time to\n\nperuse the documents in the office of the second respondent\n\nduring     working      hours.         The    appellants,           upon    completion         of\n\nperusal within the time stipulated, are granted 15 days' time\n\nthereafter to submit reply to the show cause notice.                                         After\n\nreceipt    of    the    reply    to     the       show      cause   notice,       the    second\n\nrespondent shall commence the adjudication process and complete\n\nthe same not later than 45 days from the date on which the reply8to    the    show    cause   notice   is       submitted   after   affording   an\n\nopportunity of personal hearing to the authorised representative\n\nof the appellants.13.         The appeal and the connected application are disposed of.\n\nNo costs.14.    Urgent photostat certified copy of this order, if applied\n\nfor, be furnished to the parties expeditiously upon compliance\n\nof all legal formalities.(T.S. SIVAGNANAM, J)\n\n               I agree.(HIRANMAY BHATTACHARYYA, J)\n\n\n\nNAREN/PALLAB(AR.C)