Bombay High Court
Epl Limited vs Union Of India And Ors on 22 January, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:4207-DB 11WP13421-23.DOC
PVR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13421 OF 2023
EPL Limited ... Petitioner
Versus
The Union of India & Ors. ...Respondents
Mr. Jas Sanghavi with Mr. Suyog Bhave i/b. PDS Legal, for the Petitioner.
Mr. Jitendra B. Mishra with Mr. Ram Ochani, for Respondents
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 22 JANUARY, 2024
_______________________
ORAL JUDGMENT (Per G. S. Kulkarni, J.)
1. Rule, made returnable forthwith. Respondents waive service. By consent
of the parties heard finally.
2. This petition under Article 226 of the Constitution of India is filed
praying the following substantive reliefs:-
"(a) that this Hon'ble Court be pleased to issue a Writ of Certiorari
or a writ in the nature of Certiorari or any other writ, order or direction
under Article 226 of the Constitution of India calling for the records
pertaining to the Petitioners' case and after going into the validity and
legality quash and set aside the impugned Show Cause cum Demand
Notice F. No. V/Adj/SCN/15-164/Essel/K-1/Th.1/ 2011/4065 dated
20.12.2011 issued by the Additional Commissioner of Central Excise,
Thane - 1 and pending for adjudication before Respondent No.3, with
consequential reliefs.
22 January, 2024
11WP13421-23.DOC
(b) That this Hon'ble Court be pleased to issue writ of Prohibition
or any other appropriate writ in the nature of prohibition prohibiting
the Respondents to refrain Respondent No.3 from taking further steps
or proceeding pursuant to or in furtherance of the impugned Show
Cause cum Demand Notice F. No.V/Adj/SCN/15-164/ Essel/ K-1/
Th.I/2011/4065 dated 20.12.2011 issued by the Additional
Commissioner of Central Excise, Thane-I and pending for adjudication
before Respondent No.3."
3. The relevant facts are: During the period 2008-2009 the petitioner filed
twelve rebate claims under Rule 18 of the Central Excise Rules,2002 for a
rebate of Rs.29,37,879/-. By two orders dated 18 April 2009 and 1 October
2009, the Assistant Commissioner of Central Excise rejected the said rebate
claims. Being aggrieved by such rejection, the petitioner has filed appeals
challenging the said orders passed by the Assistant Commissioner of Central
Excise. By an order dated 20 August 2010 the Commissioner (Appeals) has
allowed the petitioner's appeal and held that the petitioner was entitled to the
rebate claims. The Commissioner of Central Excise, being aggrieved by the
said order passed by the Commissioner (Appeals), approached the Customs,
Excise and Service Tax Appellate Tribunal (for short 'CESTAT'). By an order
dated 29 August 2011 the CESTAT dismissed the appeal filed by the
Commissioner of Central Excise as not maintainable in terms of the first
proviso of Section 35B(1) of the Central Excise Act. Being aggrieved by such
order, the Commissioner of Central Excise filed a revision application before
the Revisionary Authority. Pending the adjudication of the revision
22 January, 2024
11WP13421-23.DOC
application, on 20 December 2011 the Additional Commissioner of Central
Excise, Thane-I, issued the impugned show cause notice, setting out the
grounds on which the proceedings were taken out by the Commissioner which
according to the petitioner was in the protective show cause notice. Subsequent
thereto on 14 October 2013, the Joint Secretary, Revisionary Authority,
rejected the revision as filed by the Commissioner of Central Excise upholding
the admissibility of the rebate granted to the petitioner by the Commissioner
(Appeals).
4. It is contended by the petitioner that the department did not adopt any
proceedings against the orders passed by the Joint Secretary on the revision
application filed by the Commissioner. The proceedings of the show cause
notice however, had remained pending in such circumstances. However, on 5
October 2023 the Designated Officer intended to proceed with the show cause
notice and for such purpose a notice fixing personal hearing on the show cause
notice was issued to the petitioner.
5. The petitioner has contended that infact after such long lapse of time,
having not succeeded in the revision, the recovery as intended by the show
cause notice itself had become infructuous. It is submitted that in any event
adjudication of the show cause notice itself would be in the teeth of the orders
passed by the Commissioner (Appeals) as also confirmed by the Revisionary
Authority. In the aforesaid circumstances, the submission is that the reliefs as
prayed by the petitioner be granted.
22 January, 2024
11WP13421-23.DOC
6. Mr. Mishra, learned Counsel for the respondents-revenue although
opposed the petition, would not dispute the factual matrix that the orders
passed by the Revisionary Authority confirming the orders of the
Commissioner (Appeals), had attained finality.
7. Having heard the learned Counsel for the parties and having perused the
record, we find substance in the contention as urged on behalf of the petitioner
that the show cause notice was itself in the nature of a protective show cause
notice and more particularly, considering the grounds as set out in the show
cause notice in paragraphs 7 and 8. Certainly there was no cause for the
department to proceed to adjudicate the show cause notice. The contention of
the petitioner is quite correct that the show cause notice has become
infructuous in view of the order passed by the Revisionary Authority.
8. In the aforesaid circumstances, in our opinion, the petition needs to
succeed. The petition is accordingly allowed in terms of prayer clause (a) and
(b) No costs.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.)
22 January, 2024
