Uttarakhand High Court

WPMS/1073/2022 on 19 May, 2022

       IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL

       THE ACTING CHIEF JUSTICE SHRI SANJAYA KUMAR MISHRA
                                 AND
                 JUSTICE SHRI NARAYAN SINGH DHANIK


              WRIT PETITION (M/S) NO. 1073 OF 2022

                               19th MAY, 2022

 Between:

 Sai Auto Industries
 (through its Proprietor Mrs. Simmi Arora)
                                       ......                      Petitioner

 And

 The Union of India & others                     ......          Respondents

Counsel for the petitioner : Mr. Pulak Raj Mullick, learned counsel

Counsel for respondent Nos. 1 & 2 : Mr. V.K. Kaparuwan, learned Standing Counsel for the Union of India

Counsel for respondent 3,6,7 & 8: Mr. Shobhit Saharia, learned counsel

Counsel for respondent No. 4 : Mr. Tarun Lakhera, learned Brief Holder for the State

Counsel for respondent No. 5 : Mr. Vipul Sharma, learned counsel

Upon hearing the learned Counsel, the Court made the following

JUDGMENT: (per the Acting Chief Justice Shri Sanjaya Kumar Mishra)

Heard the learned counsel for the parties.

2) In this writ petition, the present petitioner has

prayed for the following reliefs : -

i) Issue a writ, order or direction in the nature of

mandamus to read down the constitutional

validity of Area Based exemption vide

notification No. 50/2003 CE dated 10.06.2003

(as amended); i.e. to confer the benefit of

Central Excise exemption to the industrial unit

of the petitioner, established in spot zoned

industrial area, i.e., khasra no. 294, Village

Bhamrola, Tehsil Kichha, District Udham Singh

Nagar; in line with the fiscal incentive in para

no. 3.1(i) of the Office Memorandum dated

07.01.2003 (Annexure No. 4), issued by

respondent No. 2; and to hold, that the benefit

of Central Excise exemption for a period of ten

years from May 2005 to April 2015, flows

directly from the Office Memorandum dated

07.01.2003 and its Annexure 1, appended to the

Office Memorandum; and to hold that the

Notification NO. 50/2003 CE dated 10.06.2003

(as amended) (Annexure No. 8); issued by

respondent No. 3; shall not come in the way to

deny the substantial benefit of Central Excise

exemption to the unit of the petitioner;

ii) Issue a writ, order or direction in the nature of

mandamus or any other direction; to hold that

the benefit of Central Excise exemption is

flowing qua the coverage of the khasra no. 294,

Village Bhamrola, Tehsil Kichha of the petitioner,

under fiscal incentive promised at serial no.

3.1(i) alongwith Annexure 1, i.e., Tehsil Kichha

covered at serial no. 1 to the said Annexure;

and to hold that the claim of the petitioner for

exemption flows from the Office Memorandum

dated 07.01.2003, which is a substantive

provision and non-inclusion of the khasra no. in

Central Excise notification no. 50/2003 CE dated

10.06.2003; is merely procedural and shall not

come into the way of the petitioner; and to hold

that the respondents cannot change their stand

or alter their position, after declaration of Office

Memorandum dated 07.01.2003, which is the

Central Industrial policy, motivating the

petitioner to establish the new unit;

iii) Issue a writ, order or direction in the nature of

certiorari, quashing the order-in-original no.

V(15)/Adj/M-IV/Sai Auto/RPM/2011/14/320

dated 08.02.2022, passed by the Additional

Commissioner, CGST, Dehradun (respondent

No. 5) (Annexure No. 1); and to hold that this

adjudication order, is non-est in law; and / or in

the alternative, to direct the learned

Commissioner of Appeals, CGST, Dehradun, to

keep the hearings of the aforesaid appeals

(along with disposal of the waiver of pre-deposit

i.e. stay application) in abeyance till decision of

the Division Bench of this Hon'ble High Court in

the present writ petition, on the peculiar facts

and circumstances of the matter in dispute.

iv) Allow as an ad-interim relief, that till pendency

of the writ petition, before this Hon'ble Court,

the demand, penalty and interest, as impugned

in the adjudication order dated 08.02.2022

(Annexure No. 1); the said demand, be kept in

abeyance;

v) Issue any other writ, order or direction and

grant any other consequential relief, which this

Hon'ble Court shall deem fit and proper on the

facts and circumstances of the case.

3) However, in course of argument, Mr. P.R.

Mullick, the learned counsel for the petitioner, would

seek intervention of the Court only with respect to

prayer No. (ii), i.e., to include khasra no. 294, situated

at Village Bhamrola, Tehsil Kichha, District Udham Singh

Nagar, in the list.

4) Mr. Shobhit Saharia, the learned counsel for

the Excise Department, on the other hand, would argue

that the matter has already been set at rest by a Co-

ordinate Bench of this Court vide common judgment and

order dated 11.08.2015, passed in Writ Petition (M/B)

No. 01 of 2015 and connected Writ Petition (M/B) No. 02

of 2015, wherein the same issue has been discussed.

5) The relevant portion extracted in paragraph 27

of the aforementioned judgment and order reads as

under:

"Mr. Shohit Saharia, learned counsel appearing on

behalf of the Excise Department and Mr. Rakesh

Thapliyal, learned Assistant Solicitor General for the

Union of India, would submit before us that things are

not as the petitioner has put it. It may be true that

recommendations were made by the Secretary,

Industrial Department, dated 29.06.2004 and

20.09.2004, recommending the inclusion of the

petitioner's khasra numbers. But, thereafter, there was

a high-level meeting, which went into the issue. There

were number of requests for inclusion. The matter had

to be streamlined. There is a case for Mr. Shobhit

Saharia that the effect of granting an exemption is that

it deprives the Government of its revenue to the extent

of the concession granted. It is pointed out that, in the

said meeting, certain decisions were taken. We may

refer to the same, which were made available to this

Court as ordered by this Court.

*****

6) Then the Division Bench went on to decide the

question. In paragraph 37 of the aforementioned

judgment and order it has been held as under:

"We notice that that petitioner had approached

earlier seeking a prayer for inclusion of his khasra

numbers in the Notification. We have noticed from the

judgment, which we have extracted, that the Court was

not inclined to grant the benefit. In fact, the Court

disposed of the writ petition in terms of the decision in

a writ petition filed by another unit, i.e. M/s Sant Steel

and Alloys Pvt. Ltd. We have referred to the said

judgment also. The Court proceeded to take the view

that, even if there is a mistake in not including certain

khasra numbers, the Court would be encroaching on

the policy matters, if it was to be persuaded to issue a

direction to include specified khasra numbers. The

Court, further, discountenanced the plea of

discrimination. Thereafter, the Court closed the matter.

Finally, the Court, however, proceeded to direct that

the decision on the representation be made known to

the petitioner therein. The earlier writ petition filed by

the petitioner, as we have already noticed, was also

disposed of on the same lines. The effect of the same

would be that the prayer for inclusion of the khasra

numbers of the petitioner must be treated as having

been turned down. A relief if it is not granted or if the

judgment is silent regarding a particular relief; it is,

both, in accordance with the principle of res judicata

enumerated in Section 11 of the Code of Civil Procedure

and also in accordance with general principle of res

judicata, which, undoubtedly, applies to the writ

petitions also; it must be taken to have been impliedly

refused and the bar of res judicata applies. In this

case, the reasoning given by the Court would leave us

in no doubt that the Court was not inclined to grant the

relief as sought for. In fact, the Court had disposed of

the writ petition in terms of the earlier judgment,

wherein the Court had closed the matter."