Gujarat High Court
Anjani Synthetics Ltd. vs Union Of India (Uoi) on 7 February, 2005
ORDER D.A. Mehta, J.
1. This petition being Special Civil Application No. 1461 of 2005 has been preferred under Article 226 of the Constitution of India praying for following reliefs :
(A) That Your Lordships may be pleased to issue a Writ of Mandamus or a Writ of Certiorari or any other appropriate writ, direction or order, quashing and setting aside letters F. Nos. IV/16-456/MP/98-P dated 23-12-1998 & 18-3-1999 (Annexure "C" collectively) regarding Annual Production Capacity of the petitioners' factory with a direction to the Commissioner of Central Excise, third respondent herein, to determine APC in accordance with the judgment of the Hon'ble Supreme Court in case of CCE, Jaipur-II v. SPBL Ltd. - 2002 (146) E.L.T. 254 (S.C.);
(B) That Your Lordships may be pleased to issue a Writ of Certiorari or any other appropriate writ, direction or order, quashing and setting aside OIA No. 223 to 232/2004 (Ahd-I) dated 31-8-2004 (Annexure "E") passed by the Commissioner of Central Excise (Appeals), Ahmedabad, second respondent herein;
(C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents, their servants and agents to restitute amounts recovered from the petitioners on galleries on the conditions that may be deemed fit by this Hon'ble Court.
(D) An ex-parte ad-interim relief in terms of Para 9(C) above may kindly be granted;
(E) That Your Lordships may be pleased to pass appropriate orders thereby dispensing with filing of certified copy of OIA No. 223 to 232/2004 (Ahd-I) dated 31-8-2004 (Annexure "E");
(F) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted.
2. The learned Advocate for all the petitioners states that the controversy involved in all the petitioners is identical, except for the difference in dates and hence, the entire group has been heard together and the order made in Special Civil Application No. 1461 of 2005 would govern all the cases.
3. Mr. Paresh M. Dave, the learned Advocate for the petitioner submitted that the impugned orders (Annexure "C" collectively) are contrary to the judgment of the Hon'ble Supreme Court in case of Commissioner of Central Excise, Jaipur-II v. S.P.B.L. Limited, 2002 (146) E.L.T. 254 (S.C.), and hence, are required to be quashed and set aside with a direction to respondent No. 3 to determine Annual Production Capacity of the petitioner's factory in accordance with the principle laid down by the Apex Court. While fixing the Annual Production Capacity in respect of specified fabrics manufactured by an independent processor under Section 3(a) of Central Excise Act, 1944 read with Hot Air Stenter Independent Processors Annual Capacity Determination Rules, 1998, the respondent Commissioner included galleries while working out the Annual Production Capacity. Accordingly, the petitioner was called upon to pay compounded levy on the basis of the aforesaid working. It is an admitted position that the petitioner did not challenge the aforesaid decisions (Annexure "C" collectively).
4. According to Mr. Dave, the inclusion of galleries as part of a stenters/chambers is bad in law in light of the aforesaid decision rendered by Apex Court and hence, the petitioner is entitled to refund of the excess amount of duty paid under protest. The petitioner's claim for refund was rejected by the Assistant Commissioner of Central Excise on the ground that it was barred by limitation and also on the ground that the petitioner had not challenged determination of Annual Production Capacity at the relevant time. The petitioner preferred appeal before the Commissioner (Appeals), and the same came to be rejected vide order of 31st August 2004 holding that it was not open to the petitioner to make a claim for refund on the basis of decision rendered in case of another assessee. The Commissioner (Appeals) further held that the claim was barred by limitation as the payment of duty was not under protest. According to Mr. Dave, though an appeal lies before the Tribunal against the order of Commissioner (Appeal), the same would be an exercise in futility in light of the fact that the Tribunal has already decided a similar matter in case of Commissioner of Central Excise, Ahmedabad v. Gopi Synthetics Ltd., . In support, decision in case of Filterco and Another v. Commissioner of Sales Tax, Madhya Pradesh, was pressed into service.
5. Mr. Dave placed reliance on the observations made by the Tribunal in Paragraph No. 10 in case of Gopi Synthetics Ltd. (supra) to urge that the determination of APC could not be challenged before the Tribunal. It was alleged that, against fixation of APC, no appeal lies and hence, the only recourse the petitioner can avail of is by way of the present petition. Alternatively, it was urged that the decision of the Commissioner fixing the APC is in violation of principles of natural justice and hence, the order is void ab initio. Therefore, according to Mr. Dave, the ratio of decision in case of Nawabkhan Abbaskhan v. State of Gujarat, is applicable to the facts of the case and the petitioner deserves an opportunity of hearing. Lastly, it was urged that similar petitions have been filed and admitted by this Court against the decision of the Appellate Tribunal rendered in case of Commissioner v. Gopi Synthetics Ltd. (supra) and connected matters.
6. As already noted, the petition challenges the determination orders whereunder APC came to be fixed by respondent No. 3 on 23rd December 1998 and 18th March 1999. Even if for the sake of argument, it could be accepted that the said orders of determination were made without hearing the petitioner, no explanation is forthcoming as to why the petitioner has come to the Court at such a belated stage. The petition has been preferred on 1st February 2005. There is gross delay and no explanation is forthcoming for such delay.
7. It was argued by Mr. Dave, when this was put to him by the Court, that the petitioner became aware of its right only when the Apex Court decided the issue in case of Commissioner of Central Excise, Jaipur-II v. S.P.B.L Ltd. (supra). Even if this contention is accepted, the petition is yet barred by laches. The Apex Court rendered the decision on 17th September 2002, and it has been . There is no reason assigned as to why the petitioner did not move the Court after the aforesaid decision.
8. It is necessary to note that the aforesaid decision was rendered by the Apex Court in appeals filed by the revenue challenging the decision of the Full Bench of the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi rendered on 4th January 2001 . Therefore, on the said day, namely 4th January 2001, there was a decision of a Full Bench of the Tribunal in favour of the petitioner, on the basis of which the petitioner could have initiated appropriate proceedings seeking necessary relief, but the petitioner has failed to do so.
9. Mr. Dave thereafter has placed reliance on two unreported decision of this Court (Annexures "A" and "B"), which have been rendered on 6th May 2004 and 12th August 2002. The petitioner has chosen not to approach this Court even after the aforesaid decisions were rendered. In the circumstances, there is no cause shown for entertaining the petition despite the same being barred by delay and laches.
10. It is an admitted position that the APC was determined on the basis of information supplied by the petitioner. In fact, the petitioner submitted a declaration in December 1998. According to the petitioner, in the said declaration, the dimensions of galleries were not declared, as according to the petitioner, galleries were not to be considered while determining the Annual Production Capacity and consequent duty liability. In case the petitioner felt that the APC determined by respondent No. 3 was not correct, it was open to the petitioner to challenge the same by way of appeal before the Tribunal under provisions of Section 35B of the Act. Though Mr. Dave urged that, against such determination of APC, no appeal would lie, he also conceded to the effect that the Appellate Tribunal in case of Gopi Synthetics Ltd. (supra) had specifically held that the order made by Commissioner determining the APC was an appealable order. Even assuming that the petitioner bonafide entertained a belief that such an order was not appealable, the petitioner ought to have challenged the same by way of a petition at the appropriate time. As already recorded hereinbefore, the petitioner has not made out any case for approaching the Court at such a belated stage. It bears no repetition that the Court would grant relief in case of a party which is vigilant and exercises its right within the prescribed period of limitation, or in absence of prescribed period of limitation, within a reasonable time. The petitioner has failed to make out any case for this Court to exercise its extraordinary jurisdiction in the aforesaid circumstances.
11. The contention regarding determination order being in violation of the principles of natural justice and thus being a void order, would require consideration provided the petition was brought before the Court within the period of limitation. It was urged that a void order could be challenged at any point of time as laid down by the Apex Court in case of Nawabkhan Abbaskhan (supra). It goes without saying that any decision of a Court has to be read in the context of the controversy which is brought before the Court. The observations on which reliance has been placed have been rendered in the context of fundamental freedom of a citizen, namely, fundamental right of the accused under Article 19 of the Constitution, in the case before the Apex Court in context of externment order under the provisions of Bombay Police Act, 1951. The said decision, therefore, cannot assist the case of the petitioner.
12. The last contention urged on behalf of the petitioner was that, in similar case, in case of Gopi Synthetics Ltd. (supra) and connected matters, similar petitions have been admitted and hence, this petition should be entertained, has been considered after calling for the papers of Special Civil Application No. 2847 of 2004, 2849 of 2004 and 2851 of 2004. The Court has merely issued Rule in the said matters. It is well settled that an order of admission per se does not operate as a precedent. In the said matters, the issue regarding the petition being barred by delay and laches has not been considered. At this juncture, it was submitted by Mr. Dave that, the said aspect could be taken into consideration by the Court when the matter are finally heard and decided. This submission is besides the point. If the petitioner has failed to establish that it is entitled to a discretionary relief by invoking extraordinary jurisdiction within the period of limitation, an order of admission in another matter cannot bring the present petition within the period of limitation.
13. In the result, Special Civil Application No. 1461 of 2005 and other cognate petitions are summarily rejected as being barred by delay and laches, no cause having been shown for such belated filing, and thus, invoking extraordinary jurisdiction of this Court.