Madras High Court
M/S. Sulzer Friction Systems (India) ... vs The Principal Commissioner Of Central ... on 30 June, 2016
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30.06.2016 Coram The Hon'ble Mr.Justice T.S.Sivagnanam Writ Petition No.20218 of 2016 and W.M.P.Nos.17391 and 17392 of 2016 M/s. Sulzer Friction Systems (India) Ltd., rep. by its President, V.Bhaskara Ramam, Shed No.50, SIDCO Industrial Estate, Thirumazhisai, Chennai - 600 124. ...Petitioner Vs. 1. The Principal Commissioner of Central Excise, Chennai I Commissionerate, No.26/1, Mahatma Gandhi Road, Nungambakkam, Chennai - 600 034. 2. The Customs Excise and Service Tax Appellate Tribunal, Shastri Bhavan Annexe Nungambakkam, Chennai. ...Respondents Writ Petition filed under Article 226 of the Constitution of India, for issuance of Writ of Mandamus, directing the first respondent to keep the issue in call book and abeyance of passing final orders of the statement of demands, dated 05.06.2015 and 26.10.2015, till the disposal of the petitioner's appeals in E/41640/14 and E/41641/14, pending before the second respondent-Tribunal. For Petitioner : Mr.K.Jayachandran For Respondent : Mr.A.P.Srinivas Standing Counsel O R D E R
The petitioner has filed this Writ Petition, praying for issuance of a writ of mandamus, to direct the first respondent to keep the issue in call book and in abeyance of passing final orders of the statement of demands, dated 05.06.2015 and 26.10.2015 till the disposal of the petitioner's Appeals in E/41640/14 and E/41641/14, pending before the second respondent-Tribunal.
2. The reasons for seeking for the aforesaid prayer are as follows:- i) On the same issue, in respect of the earlier period, i.e., from 1.04.2008 to 30.09.2013, adjudication order/order in original, dated 28.05.2014, came to be passed by the first respondent, confirming the proposals of statement of demand. Challenging the same, the petitioner has filed Appeals before the second respondent/Tribunal. Pending disposal of the Appeals, the petitioner filed applications, i) for stay of the demand and ii) for early hearing of the Appeals. The Tribunal, by a speaking order, dated 24.06.2015, allowed the Stay Applications and has granted waiver of the total demand. Insofar as applications, seeking for early hearing of the Appeals are concerned, the same were dismissed. At this stage, it would be relevant to quote the operative portion of the order passed by the Tribunal, which reads as follows:-
After considering the submissions of both sides, we find that there is no dispute on the fact that appellants carrying out job work on the goods received from the principal manufacturer and after carrying out the carban lining the same were returned to the principal manufacturer. Appellate produced copy of job work challans, delivery receipt of the materials and while returning the goods, they paid excise duty on the cost of value addition in respect of carbon lining/facing undertaken by the appellants. The goods were not sold or cleared to any other persons but returned to the principal manufacturer only. We find that Tribunal in the case of Rolaster Pvt. Ltd., Vs. CCE Daman 2012 (276) ELT 87 (Tri.Ahmd) has held that provisions of Rule 10 (a) would not apply to job worker, who has completed job work and returned to the principal manufacturer. Revenue has not disputed the procedure followed by the principal manufacturer. The only dispute is the appellant discharged duty on the value addition. Therefore, in view of Tribunal decision referred above, prima facie, appellants have made out a case for waiver of total demand. Accordingly, there will be waiver of predeposit and stay of recovery during pendency of Appeal. Stay Application is allowed. We do not find any merit in the EH applications, which are dismissed.
3. As on date, the order passed by the Tribunal, though it is a common order, has not been questioned by the Department, nor it has not been varied/reversed/modified/stayed by the Hon'ble Division Bench of this Court. While things stood thus, the first respondent has issued two show cause notices, dated 05.06.2015 (for the period 1.5.2014 to 30.09.2014) and 26.10.2015, (for the period 1.10.2014 to 30.06.2015), proposing to confirm the statement of the demand. Hence, this Writ Petition.
4. When the second respondent/Tribunal, in respect of the same issue, with regard to the earlier period, has granted waiver of the total demand, and stayed recovery proceedings, the act of the first respondent, in repeatedly issuing demand notice to the petitioner would obviously, result in multiplicity of proceedings. However, for that reason, this Court would not issue mandamus to the first respondent, forbearing him from performing their statutory duties. Therefore, this Court, with a view to strike a balance, issues the following directions:-
i) The show cause notices, dated 05.06.2015 and 26.10.2015, issued by the first respondent shall be kept in abeyance, till the disposal of the Appeals filed by the petitioner as against order in original, dated 28.05.2014. For the subsequent periods, it is open to the first respondent to raise demand, however, the first respondent is precluded from enforcing the same against the petitioner. The above observation and direction is given, taking note of the fact that, otherwise, the demands are likely to be barred by limitation. It is pertinent to mention here that, the petitioner has, in fact, has acceded to such procedure being adopted by the Department, in para No.15 of the affidavit, filed in support of this Writ Petition. This concession given by the petitioner is placed on record.
5. The Writ Petition is disposed of, accordingly. Consequently, connected Miscellaneous Petitions are closed. No costs.
30.06.2016 sd Index : yes/no To
1. The Principal Commissioner of Central Excise, Chennai I Commissionerate, No.26/1, Mahatma Gandhi Road, Nungambakkam, Chennai - 600 034.
2. The Customs Excise and Service Tax Appellate Tribunal, Shastri Bhavan Annexe Nungambakkam, Chennai.
T.S.Sivagnanam, J.
sd Writ Petition No.20218 of 2016 30.06.2016