Messrs Chiripal Polyfilms Ltd. vs Union Of India
2021 Latest Caselaw 16917 Guj

    C/SCA/15983/2021                                    ORDER DATED: 27/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 15983 of 2021

================================================================
                       MESSRS CHIRIPAL POLYFILMS LTD.
                                   Versus
                              UNION OF INDIA
================================================================
Appearance:
AMAL PARESH DAVE(8961) for the Petitioner(s) No. 1,2
MR PARESH M DAVE(260) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2,3,4
================================================================

 CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                               Date : 27/10/2021

                          ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

The petitioners before this Court seeking to challenge the

issuance of the show-cause notice dated 17.08.2021. According

to the petitioners, this Court in its decision in the case of Maxim

Tubes Company Pvt. Ltd. Vs. Union of India, 2019 (368) E.L.T.

337 (Guj) has succeeded. However, the challenge is taken before

the Hon'ble Supreme Court in various leave petitions where the

Hon'ble Supreme Court has stayed operation and

implementation of the impugned judgment and without

proceedings before the Hon'ble Supreme Court, the authority

C/SCA/15983/2021 ORDER DATED: 27/10/2021

concerned issued the notice on the very premise for which the

challenge was made before this Court on earlier round of

litigation. According to him, this Court in Special Civil Application

No.20397 of 2019 also had made approach where the notice has

been issued and protection has been availed. The order dated

20.11.2019 passed in Special Civil Application No.20397 of 2019

reads as under:-

1. Mr.Paresh M. Dave, learned advocate for the petitioner submitted that the decision of this court in the case of Maxim Tubes Company Pvt. Ltd. v. Union of India, 2019 (368) E.L.T. 337 (Guj.), has been challenged before the Supreme Court in various Special Leave Petitions.

2. It was pointed out that vide order dated 23.9.2019 passed in Special Leave Petition (C) No.23356 of 2019 the Supreme Court has stayed the operation and implementation of the said judgment. The attention of the court was invited to the decision of the Calcutta High Court in the case of Pijush Kanti Chowdhury v. State of West Bengal, MANU/WB/0077/2007, wherein the court has held that the effect of the order of stay in a pending appeal before the Apex Court does not amount to 'any declaration of law', but is only binding upon the parties to the said proceedings and at the same time, such interim order does not destroy the binding effect of the judgment of the High Court as a precedent because while granting the interim order, the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court which is impugned.

3. Reliance was also placed upon the decision of the Delhi High Court in Principal Commissioner of Central Excise, Delhi- 1 v. Space Telelink Ltd. 2017 (355) E.L.T. 189 (Del.), wherein the court placed reliance upon the decision of the Supreme Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, (1992) 3 SCC 1, and held that an order keeping in abeyance the judgment of lower court or authority does not deface the underlying basis of the judgment itself, i.e., its reasoning. It was submitted that

C/SCA/15983/2021 ORDER DATED: 27/10/2021

therefore, the principles enunciated in the decision of this court in the case of Maxim Tubes Company Pvt. Ltd.(supra) would not stand defaced.

4. Having regard to the submissions advanced by the learned advocate for the petitioner, Issue Notice, returnable on 4th December 2019. By way of ad-interim relief, further proceedings pursuant to the impugned show cause notice dated 25.7.2019 (Annexure-F to the petition) are hereby stayed. The respondents shall not take any coercive recovery against the petitioner for recovery of any amount under the impugned show-cause notice.

5. Direct service, is permitted.

Issue NOTICE returnable on 1st December 2021. Before

returnable date, no final order shall be passed. In the event of

any difficulty, the petitioner is at liberty to approach this Court

without moving any civil application.

(SONIA GOKANI, J)

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL