Punjab-Haryana High Court
M/S Kent Malleables Private Limited vs Union Of India And Ors on 4 August, 2016
Bench: Rajesh Bindal, Harinder Singh Sidhu
CWP No. 506 of 2012 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 506 of 2012 (O&M)
Date of decision: 4.8.2016
M/s Kent Malleables Pvt. Ltd.
.. Petitioner
v.
Union of India and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
Present: Mr. Jagmohan Bansal, Advocate for the petitioner.
Mr. Tajender K. Joshi, Advocate for the respondents.
...
Rajesh Bindal J.
The petitioner has approached this court impugning the order dated 9.9.2011 (Annexure P-8), passed by the Revisionary Authority, rejecting the revision against the order in appeal dated 31.8.2006 passed by the Commissioner (Appeals), Central Excise, Jalandhar, Headquarter at Chandigarh. The Commissioner (Appeals) had modified the order passed by the adjudicating authority on 6.3.2006.
Learned counsel for the petitioner, while placing reliance upon a Division Bench judgment of this Court in CWP No. 24967 of 2015--M/s NVR Forgings v. Union of India and others, decided on 22.3.2016, For Subsequent orders see CWP-11063-2014, CWP-24253-2011, -- and 1 more.
1 of 6 ::: Downloaded on - 10-09-2016 22:37:08 ::: CWP No. 506 of 2012 [2] submitted that the impugned order passed by the Revisionary Authority cannot be sustained, as the same has been passed by the officer of the same rank as is the appellate authority. The Revisionary Authority had to be an officer of a higher rank than the appellate authority, whose order is impugned before the Revisionary Authority.
Learned counsel for the respondents does not dispute the aforesaid legal position.
Heard learned counsel for the parties and perused the paper book.
This Court in M/s NVR Forgings's case (supra), while considering the same issue, opined as under:
5. Learned counsel for the petitioner submitted that the revisional power has been exercised by officer of the same and equal rank who had upheld the order of impugned demand and penalty and dismissed the appeal i.e., Commissioner (Appeals).
Reliance was placed on judgment of this Court in M/s Prakash Pipes Industries Limited, Mayar, Hisar vs. State of Haryana and another, CWP No.9415 of 1990, decided on 21.10.2015 in support of the submission.
6. On the other hand, learned counsel for the respondents besides supporting the impugned order relied upon judgment of a Single Bench of Delhi High Court in Labh Singh Atma Singh vs. Union of India and others, AIR 1970 Delhi 171 and judgment of Apex Court in Jayantilal Amratlal Shodhan vs. F.N.Rana and others, AIR 1964 SC 648.
7. In M/s Prakash Pipes Industries Limited's case (supra) to For Subsequent orders see CWP-11063-2014, CWP-24253-2011, -- and 1 more.
2 of 6 ::: Downloaded on - 10-09-2016 22:37:09 ::: CWP No. 506 of 2012 [3] which one of us (Ajay Kumar Mittal,J.) was a member, while considering identical situation, after examining the relevant case law on the point, it was held that the revision by the officer of the same rank was not permissible. It was recorded as under:-
"5.The matter is no longer res integra. This Court in Triputi Udyog Ltd. v. State of Haryana (2010) 37 PHT 521 (P&H) while dealing with the identical issue had held that the revision by officer of the same rank was not permissible. It was recorded as under:-
"Re. Que.(2):
Learned counsel for the assessee submits that the Deputy Excise and Taxation Commissioner was acting as assessing authority and though revisional powers were delegated to the Deputy Excise and Taxation Commissioner, the said powers could be exercised by an officer only in relation to orders passed by his subordinates and not in respect of orders passed by officer of the same or higher rank. He relies upon judgment of Andhra Pradesh High Court in Sri Satya Winery & Distillery Private Ltd. v. State of A.P. (2000) 117 STC 291 and submits that the question of law may be read accordingly. The question appears to have been wrongly formulated. It has been pointed out that the For Subsequent orders see CWP-11063-2014, CWP-24253-2011, -- and 1 more.
3 of 6 ::: Downloaded on - 10-09-2016 22:37:09 ::: CWP No. 506 of 2012 [4] judgment of Andhra Pradesh High Court in Sri Satya Winery has been accepted by the State of Haryana and instructions dated 12.10.1990 have been issued. Accordingly, the Sales Tax Tribunal has been holding that revision by officer of the same or lower rank was not permissible. By way of instances, he has produced following orders of the Tribunal:-
I. M/s Kailashpati Cotton (P) Ltd., Siwani v. State of Haryana, (2001) 18 PHT 576 (STT Hr).
II. M/s S.R. Oils & Fats Ltd., Bahalgarh v. State of Haryana, (2002) 19 PHT 272 (STT Hr).
III. M/s K.C. Textiles Ltd., Pandupindara, Jind v. State of Haryana, (2002) 19 PHT 525 (STT Hr). IV. M/s Intertia Industries Ltd., Rewari v. State of Haryana, (2003) 21 PHT 442 (STT Hr).
V. M/s Ram Partap Bansal and Co. P. Ltd., Tohana v. State of Haryana, (1994) 4 PHT 530 (STT Hr). We accordingly answer the question in favour of the assessee and against the revenue and hold that the revision by officer of the same rank was not permissible."
6. Again in the case of the petitioner itself, this Court vide order dated 5.2.2015 in CWP No. 9683 of 1990, considering identical issue wherein notice issued under For Subsequent orders see CWP-11063-2014, CWP-24253-2011, -- and 1 more.
4 of 6 ::: Downloaded on - 10-09-2016 22:37:09 ::: CWP No. 506 of 2012 [5] Section 40(2) of the Act for revising the assessment order by the officer of same rank was challenged, the Department had withdrawn the said notice. However, liberty was granted to the State to issue fresh notice under Section 40(2) of the Act in accordance with law without prejudice to the rights of the parties."
8. In the present case, the impugned order was passed by the Joint Secretary to Government of India who was also Commissioner of Central Excise and Customs. Thus, the order in appeal as well as revisionary order had been passed by the officers of the same rank which is not permissible as per law. Adverting to the judgments relied upon by the learned counsel for the respondents, it may be noticed that the said decisions were based on individual fact situation involved therein. Thus, the respondents cannot derive any advantage from the said pronouncements.
9. In view of the above, the petitions are allowed. The impugned order dated 28.8.2015, Annexure P.8 in CWP No.24967 of 2015 and order dated 16.9.2015, Annexure P.5 in CWP No.26321 of 2015 are set aside. However, liberty is granted to the State to proceed afresh in accordance with law but without prejudice to the rights of the parties." For the detailed reasons recorded in the aforesaid judgment, the impugned order dated 9.9.2011, passed by the Revisionary Authority is set aside, however, with liberty to the revenue to proceed afresh in accordance For Subsequent orders see CWP-11063-2014, CWP-24253-2011, -- and 1 more.
5 of 6 ::: Downloaded on - 10-09-2016 22:37:09 ::: CWP No. 506 of 2012 [6] with law.
The writ petition stands disposed of accordingly.
(Rajesh Bindal) Judge (Harinder Singh Sidhu) Judge 4.8.2016 mk Whether speaking/reasoned: Yes/No Whether reportable: Yes/No For Subsequent orders see CWP-11063-2014, CWP-24253-2011, -- and 1 more.
6 of 6 ::: Downloaded on - 10-09-2016 22:37:09 :::