Page 165 - ELT_1_1st April 2020_Vol 372_Part

2020 ] SYPHER IMPEX ALLOYS PVT. LTD. v. UNION OF INDIA 51

6. Learned Counsel for the petitioner-assessee argued that as per
Clause 11.2 of the Master Circular, in the case of different show cause notices
issued on the same issue answerable to different adjudicating authorities, show
cause notice involving the same issue shall be adjudicated by the adjudicating
authority competent to decide the case involving the highest amount of duty,
which according to him, would be the Additional Director General, Directorate
General of Central Excise Intelligence, Delhi Zonal Unit, New Delhi where the
adjudication proceedings are still pending.
7. Learned Counsel for the Revenue however objected to the maintain-
ability of the writ petition on the ground that the petitioners have alternative ef-
ficacious remedy by way of appeal under Section 35B of the Central Excise Act,
1944 before the Customs, Excise and Service Tax Appellate Tribunal, New Delhi.
However, responding to the argument raised by Learned Counsel for the peti-
tioners, his submission is that C.B.E. & C. Circular No. 1000/7/2015-CX, dated 3-
3-2015 and Circular No. 1053/2/2017-CX., dated 10-3-2017 are applicable only in
respect of the cases booked by DGCEI as is evident from the subject of Circular
No. 1000/7/2015-CX., dated 3-3-2015 which reads as ‘Instructions regarding ad-
judication of Central Excise and Service Tax Cases booked by DGCEI-reg.’. Fur-
ther submission of Learned Counsel for the Revenue is that present case was not
booked by DGCEI, which could be considered for transferring to another adjudi-
cating authority. Moreover, such a request was made by Petitioner No. 1 after
more than five months of issuance of impugned show cause notice. Furthermore,
the request of the petitioners for transferring the case to the Additional Director
General, Directorate General of Central Excise Intelligence, Delhi Zonal Unit,
New Delhi did not fall within the power of the adjudicating authority of the pre-
sent case i.e. the Commissioner, Central Excise and Service Tax Commissioner-
ate, Alwar and therefore the same could not be considered.
8. We are not inclined to enter into the merits of the case but at the
same time we are also not inclined to countenance the preliminary objection
raised by the respondents with regard to maintainability of writ petition on the
ground of availability of alternative efficacious remedy of appeal as the objection
of the petitioner-assessee, if upheld, would touch upon the very jurisdiction of
the Assessing Authority. In our view, objection of the respondents with reference
to subject of Circular No. 1000/7/2015-CX., dated 3-3-2015 that it deals with ‘In-
structions regarding adjudication of Central Excise and Service Tax Cases
booked by DGCEI-reg.’ is wholly untenable because this circular is no longer in
existence as the same has been rescinded by the Master Circular. This would be
evident from list of circulars appended thereto wherein Circular dated 3-3-2015
finds place at Serial No. 86. The respondents therefore would not be justified in
relying on Circular dated 3-3-2015.
9. We have gone through two show cause notices and find substantial
similarities between the two and we are prima facie inclined to sustain the argu-
ment of Learned Counsel for the petitioner that subsequent show cause notice
dated 2-5-2017 has been issued on the basis of material discovered in the course
of investigation conducted and referred to in earlier show cause notice dated 1-3-
2016 issued to M/s. Chandra Protech Ltd., Silvassa. We therefore find that both
the show cause notices are based on common evidence relied before different
adjudicating authorities by the department, thus, giving rise to possibility of di-
vergent views by two different adjudicating authorities. It is in order to avoid
such a situation that the Central Board of Central Excise and Customs, New Del-
EXCISE LAW TIMES  1st April 2020  213