The Hon’ble High Court of State of Telangana vide its order dated 23.06.2023 in the matter of Nektar Therapeutics India Pvt. Ltd. Vs. Union Of India in Writ Petition No. – 15871 of 2023, quashed the show cause notice issued by Assistant Commissioner of Central Tax, Central Excise & Service Tax, Medchal Division, Medchal Commissionerate, finding that the same has been issued beyond the pecuniary jurisdiction as the Assistant Commissioner would not be the ‘Proper Officer’ for issuing the said show cause notice in terms of circular issued by Central Board of Excise and Customs.
The Petitioner filed the writ petition before the Hon’ble High Court challenging the show cause notice No.04/2023-24 dated 17.04.2023 issued by respondent No.5 i.e., Assistant Commissioner of Central Tax, Central Excise & Service Tax, Medchal Division, Medchal Commissionerate.
Petitioner’s Submissions: –
- It was submitted on the behalf of the petitioner that the Assistant Commissioner is not the ‘Proper Officer’ in terms of Circular No.31/05/2018-GST dated 09.02.2018 issued by the Central Board of Excise and Customs inasmuch as the proper officer would be Additional or Joint Commissioner of Central Tax. Therefore, it was prayed to set aside the show cause notice impugned.
- Further, it was submitted that the show cause notice has been issued for recovery of refund earlier granted to the petitioner and the recovery is sought to be made on the ground that the refund was made erroneously. The refund claim of the petitioner, which is in dispute in the present case, was affirmed by the jurisdictional Customs, Excise & Service Tax Appellate Tribunal (CESTAT) which order has attained finality.
- Therefore, judicial discipline and propriety demands that respondent should be restrained from taking steps for recovery of the refund granted.
- The Hon’ble Court after considering the submissions made, facts of the case and the circular referred, found that though the challenge has been made on various grounds, On the behalf of respondents No.2 to 6 contentions advanced by the petitioner i.e., that respondent No.5 i.e., Assistant Commissioner, is not the proper officer as clarified by circular No.31/05/2018-GST dated 09.02.2018 issued by the Central Board of Excise and Customs inasmuch as the proper officer would be Additional or Joint Commissioner of Central Tax, has been fairly conceded.
- Therefore, the Hon’ble Court keeping all the contentions open, set aside the impugned show cause notice dated 17.04.2023, making it clear that proper officer shall hold consultation with the petitioner if he intends to issue fresh show cause notice i.e., pre show cause notice consultation.
The Hon’ble Court with the above observations and findings, allowed the writ petition by setting aside the impugned show cause notice. However, there shall be no order as to costs.