Rajasthan High Court - Jodhpur
M/S J.K. Cement Works vs Union Of India on 14 December, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 5985/2022
M/s J.K. Cement Works, Kailash Nagar-1, Nimbahera, District -
Chittorgarh, Rajasthan - 312617, through its authorized
signatory Akshat Srivastava S/o Sh. N.P. Srivastava Aged 43
Years, Presently working as Sr. Manager Legal and Indirect
Taxes, residing At E-217, Shrinath Puram, Kota.
----Petitioner
Versus
1. Union Of India, Through The Secretary Ministry Of
Finance, No. 137, North Block, New Delhi, Delhi.
2. Commissioner, CGST and Central Excise, Udaipur,
Rajasthan.
----Respondents
Connected With
D.B. Civil Writ Petition No. 6014/2022
M/s J.K. Cement Works, Kailash Nagar-1, Nimbahera, District -
Chittorgarh, Rajasthan - 312617, through its authorized
signatory Akshat Srivastava S/o Sh. N.P. Srivastava Aged 43
Years, Presently working as Sr. Manager Legal and Indirect
Taxes, residing At E-217, Shrinath Puram, Kota.
----Petitioner
Versus
1. Union Of India, Through The Secretary Ministry Of
Finance, No. 137, North Block, New Delhi, Delhi.
2. Commissioner, CGST and Central Excise, Udaipur,
Rajasthan.
----Respondents
D.B. Civil Writ Petition No. 6016/2022
M/s J.K. Cement Works, Kailash Nagar-1, Nimbahera, District -
Chittorgarh, Rajasthan - 312617, through its authorized
signatory Akshat Srivastava S/o Sh. N.P. Srivastava Aged 43
Years, Presently working as Sr. Manager Legal and Indirect
Taxes, residing At E-217, Shrinath Puram, Kota.
----Petitioner
Versus
(Downloaded on 14/12/2022 at 11:59:15 PM)
(2 of 8) [CW-5985/2022]
1. Union Of India, Through Through The Secretary Ministry
Of Finance, No. 137, North Block, New Delhi, Delhi.
2. Commissioner, CGST and Central Excise, Udaipur,
Rajasthan.
----Respondents
D.B. Civil Writ Petition No. 6313/2022
M/s Birla Corporation Ltd., Chanderia, Chittorgarh, Rajasthan
Through Power Of Attorney Holder Sunil Kumar Gadiya S/o
Dhanraj Gadiya Aged About 51 Years, Residing At Madhav Nagar,
Chanderia, Chittorgarh, Rajasthan - 312021.
----Petitioner
Versus
1. Union Of India, Through The Secretary Ministry Of
Finance, No.137, North Block, New Delhi, Delhi
2. Commissioner, CGST and Central Excise, Udaipur,
Rajasthan.
----Respondents
For Petitioner(s) : Mr. Vikas Balia, Sr. Advocate with
Mr. Vinay Kothari &
Mr. Sachin Sarswat.
For Respondent(s) : Mr. Rajvendra Saraswat.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
ORDER
Order pronounced on ::: 14/12/2022
Order reserved on ::: 25/11/2022
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. These matters have come up before this Court for orders on
the applications under Article 226(3) of the Constitution of India
submitted by the respondents for vacating the ex-parte ad interim
stay orders dated 25.04.2022 passed in Writ Petitions
Nos.5985/2022, 6014/2022 & 6016/2022 and ad interim stay
order dated 04.05.2022 passed in Writ Petition No.6313/2022.
(3 of 8) [CW-5985/2022]
2. Heard learned counsel representing the parties on the
applications under Article 226(3) of the Constitution of India.
Perused the material available on record.
3. These four writ petitions involve common questions of facts
and law. The petitioners herein have assailed the action of the
respondent CGST Department in reviving the original show cause
notices issued to them under the Central Excise Act, 1945 and the
CENVAT Credit Rules, 2004. The original show cause notices were
issued to the petitioners as scheduled below:
Writ No. Original Show Demand Period Amount Revival
Cause Notice involved (In Notice Date
Date Rs.)
5985/22 28.01.2008 April-2007 to 18361402 28.03.2022
September-2007 &
06.04.2022
6014/22 03.10.2008 October-2007 to 66128614 28.03.2022
April-2008 &
06.04.2022
6016/22 27.09.2007 September-2006 45966210 28.03.2022
to March-2007 &
06.04.2022
6313/22 08.11.2007 December- 64525616 08.04.2022
2004 to &
September- 19.04.2022
The petitioners have set up a pertinent plea in the writ
petitions that after the original show cause notices were issued, no
further communication was forthcoming from the respondents and
thus, the petitioners entertained a genuine and bonafide belief
that no further proceedings were proposed by the respondents
and the show cause notices might have been dropped. However,
revival notices were issued to the petitioners in the above terms
(4 of 8) [CW-5985/2022]
whereupon, they have filed these writ petitions claiming that the
revival notices are stale and time barred. That the plea of the
respondents that the notices had been bonafidely put in the call
book on account of pendency of a litigation pertaining to a
contemporaneous issue, is absolutely unacceptable because no
intimation was ever given to the petitioners of the show cause
notices having been placed in the call book. Various other grounds
are raised in the writ petitions most pertinent them of being that
the decision to place the matters in call book was not taken after
due approval from the Chief Commissioner as required by the
mandatory circulars governing the subject. It is also asserted that
the show cause notices pertain to an issue, which has been
adjudicated in favour of the assessee by the Hon'ble High Court
and the SLP filed by the department against the Judgment of the
High Court was withdrawn and even the Central Board of Indirect
Taxes and Customs (CBI&C) has issued a communication requiring
culmination of all such notices.
Shri Vikas Balia, learned Senior Counsel assisted by Shri
Vinay Kothari, Advocate representing the petitioners, made the
above submissions and implored the Court to dismiss the
applications under Article 226(3) of the Constitution of India. Shri
Balia rather submitted that the writ petitions itself can be decided
on the basis of these very submissions.
4. Shri Rajvendra Saraswat, learned counsel representing the
respondents, vehemently and fervently opposed the submissions
of Shri Balia. He urged that extensive arguments would be
required for final decision of the writ petitions and thus, for the
present, the applications for vacation of ad interim stay orders
(5 of 8) [CW-5985/2022]
may be considered on their merits. He submitted that the plea
put-forth by the petitioner in Writ Petition no.5985/2022 that it
was not aware of the original show cause notice having been
placed in the call book is, on the face of the record, falsified from
its own communication dated 04.10.2021 exchanged with the
Department wherein, the petitioner has conveyed its knowledge
regarding the transfer of the original show cause notice to the call
book. He submitted that the Department issued a communication
dated 17.09.2019 to the petitioner wherein, reference was given
to the original show cause notice and the petitioner was intimated
of the Amnesty Scheme floated by the Government of India and
an option was given to the petitioner for getting the dispute
resolved under this Scheme. In response thereto, the petitioner
communicated to the Department that the original show cause
notices had been placed in the call book and that it was desirous
of getting the same decided on merits. Thus, as per Shri
Saraswat, the plea taken in the writ petition No.5985/2022 that
the petitioner Industry was not aware regarding the transfer of the
show cause notice to the call book, is absolutely unacceptable and
hence, the interim orders should be vacated and the writ petitions
are liable to dismissal because the petitioners can raise all their
grievances before the adjudicating authority in the pending show
cause notice proceedings.
5. We have given our thoughtful consideration to the
submissions advanced at bar and, have gone through the material
available on record.
(6 of 8) [CW-5985/2022]
6. The petitioners have raised a pertinent plea that no
communication was ever sent to them regarding the decision of
the Department to place the original show cause notices in the call
book. Shri Saraswat fervently referred to the communication
dated 04.10.2021 issued from the side of the petitioner wherein, it
is mentioned that the cases had been kept in the call book. Thus,
as per Shri Saraswat, the petitioners have failed to make out a
case that the original show cause notices were kept in the call
book without intimation. We have considered the said submission.
However, prima facie, we are not satisfied with this plea advanced
by Shri Saraswat. It is apparent that this letter was issued on
behalf of the petitioner pursuant to the communication sent by the
Department on 17.09.2019 wherein, the petitioner was asked to
get the dispute resolved under the Amnesty Scheme, 2019.
Apparently, when this letter was received, the petitioner must
have realized that the show cause notices had not been
concluded/dropped and were still pending.
In common parlance of Excise, Custom and Tax matters,
whenever notices are pending for so long, the parties would be
given to understand that the proceedings must have kept in the
call book. Thus, reference given in the letter dated 04.10.2021
issued from the side of the petitioners cannot be meant to convey
that the petitioner/petitioners had, right from the inception, been
given an intimation that the show cause notices were placed in the
call book.
7. Be that as it may. Irrespective of the above situation, the
petitioners have taken a pertinent plea in the writ petitions that
the subject matter of the show cause notices, which is denial of
(7 of 8) [CW-5985/2022]
credit under the CENVAT Credit Rules, 2004 relating to
inputs/capital goods used for installation of captive power plant,
has been settled in favour of the assessee. This aspect of the
controversy would have been adjudicated when the writ petitions
are finally heard. The fact remains that the original show cause
notices were issued nearly 13 years before the revival notices
came to be issued. Whether or not the decision to place the
original show cause notices in the call book was taken in
conformity with the prevailing circulars; whether or not intimation
was required to be given to the petitioners before placing the
show cause notices in the call book, is the subject matter of
challenge in the writ petitions and would have to be adjudicated
after examining the merits of each case.
We are fully satisfied that the petitioners have made a prima
facie case for confirmation of the ad interim stay orders till disosal
of writ petitions. Vacating the stay orders at this stage would
virtually render the writ petitions infructuous because if the stay
orders are vacated, the respondent authorities would proceed to
finalize the proceedings of the show cause notices which is not at
all warranted in the above mentioned scenario.
8. Hence, we are not persuaded to accept the contention
advanced by learned counsel Shri Saraswat that the ex parte ad
interim stay orders should be vacated.
9. Consequently, the applications filed by leaned counsel Shri
Saraswat under Article 226(3) of the Constitution of India are
dismissed. The ad interim stay orders dated 25.04.2022 passed in
Writ Petitions Nos.5985/2022, 6014/2022 & 6016/2022 and ad
(8 of 8) [CW-5985/2022]
interim stay order dated 04.05.2022 passed in Writ Petition
No.6313/2022 are confirmed to last till final disposal of the writ
petitions. The stay applications are thus disposed of. In case,
either of the parties are desirous of filing further affidavits/
counters, the same be filed by the next date of hearing.
10. The writ petitions be listed for final disposal in the Fourth
Week of January, 2023.
11. A copy of this order be placed in each file.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
Tikam Daiya/-
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