Fresenius Kabi Oncology Ltd vs Union Of India & Ors
2023 Latest Caselaw 1706 Cal

Item no. 05


              IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                             APPELLATE SIDE

Present:
The Hon'ble Justice T.S. Sivagnanam
              And
The Hon'ble Justice Hiranmay Bhattacharyya


                                MAT 147 of 2023
                                      with
                              IA No. CAN 1 of 2023

                        Fresenius Kabi Oncology Ltd.
                                    vs.
                            Union of India & Ors.

Appearance:
For the Appellants      :   Mr. Abhratosh Majumder, Sr. Adv.
                            Mr. Avra Nazynder
                            Mr. Saurabh Bagaria
                            Mr. Arindam Chandra
                            Mr. Atish Ghosh

For the Respondents     :   Mr. Bhaskar Prasad Banerjee

Heard on                : 15.03.2023

Judgment on             : 15.03.2023.


T.S. Sivagnanam J.:

1. This intra-Court appeal filed by the writ petitioner is directed

against the order dated 11.01.2023 passed by the learned Single Judge

in WPA 3173/2020. In the said writ petition, the appellant had

challenged the order passed by the revisional authority viz. The

Additional Secretary of Government of India, Ministry of Finance,

Department of Revenue by which the order passed by the appellate

authority denying the claim for rebate is affirmed. Though the writ

petition was entertained and affidavit-in-opposition was filed, the

learned Single Judge had set aside the order passed by the revisional

authority and remanded the matter back for fresh consideration on the

sole ground that the written arguments filed by the appellant were not

considered in a proper perspective by the revisional authority. We find

that the order of remand passed by the learned Single Judge is a second

order of remand. Earlier a Division Bench of this Court in MAT 796 of

2016 dated 27.08.2019 had set aside the order passed by the revisional

authority and remanded the matter back for fresh consideration. It is

pursuant to such order and the order impugned in the writ petition was

passed. Since the writ petition is of the year 2020 and affidavit-in-

opposition has already been filed, no useful purpose would be served in

remanding the matter back for fresh consideration as the appellant did

not raise the plea of violation of principles of natural justice on the

ground that the written arguments were not considered.

2. We have heard learned counsel for the parties elaborately.

Learned senior counsel for the appellant would contend that this

submission of violation of principles of natural justice was undoubtedly

an ultimate submission, as the order impugned in the writ petition was

challenged on factual and legal grounds.

3. Therefore, we are of the view that the remand back of the matter

once again to the revisional authority is a wasteful purpose and the

matter is to be decided on merits and in accordance with law by the

learned writ court.

4. For the above reasons, the appeal stands allowed and the order

in the writ petition is set aside and the writ petition stands allowed to its

original file and number of the learned Single Bench to be heard and

decided on merits and in accordance with law. Liberty is granted to the

appellant to file affidavit-in-reply to the affidavit-in-opposition filed by

the respondents in the writ petition. Consequently, the connected

application also stands allowed.

5. List the matter before the appropriate Bench in the month of May,

2023 for further consideration.

(T. S. Sivagnanam, J.)

(Hiranmay Bhattacharyya, J.)

RP/Amitava (AR. CT.)