- (1.) R. B. Misra, J. By this writ petition under Article 226 of the Constitution of India the petitioner has sought a suitable writ order or direction quashing the order dated 11-1-2000 passed in Appeal No. F/2373/2000/nb [db] and E/2406/2000 and for suitable directions to respondent No. 1 to hear and decide the above appeal on merits.
(2.) HEARD Sri S. N. Verma, learned Senior Advocate with Pankaj Bhatia for the petitioner and learned Standing Counsel for the respondents and with the consent of the parties, this petition is decided finally at this stage under Rule 2 of Chapter XXII of the Allahabad High Court Rules, 1952. The brief facts necessary for adjudication of the present writ petition are enumerated herein below : (i) The petitioner, M/s. Jalan Castings (Pvt.) Limited is engaged in 'the manufacture' of 'm. S. Casted Blooms' notified under Section 3-A, of Central Excise Act (called Act herein after) and falling under Chapter 7206. 90 under the Central Excise Tariff Act, 1995 (hereinafter referred to as the 'tariff Act') and from 1-4-2000, the above commodity has been withdrawn from the list of the notified goods under Section 3-A of the 'act'. (ii) In pursuance to the power given under Section 3-A (2) of 'act' the Central Government has framed rules known as "induction Furnace Annual Capacity Determination Rules, 1997" (hereinafter referred to as the 'rules'), (Annexure III ). The Commissioner by its order dated 30-9-1997 (Annexure I) determined provisionally capacity of the Furances installed at the petitioner's premises and determined the duty payable ex-parte. Later on, the said capacity was re-determined ACP as 43174,720 MTS and duty payable as Rs. 22,48,868. 00 per month w. e. f. 1-9-1997 and ACP as 64761. 600 MT and duly payable Rs. 33,73,000 (from 1-9-1997 to 31-12-1997) by order dated 20/21-3-1998 (Annexure II ). (iii) According to Rule 3, to determine the annual capacity the Commissioner, Central Excise (a) shall call for an authenticated copy of the manufacturers invoices who have applied or installed furnace or crucible to the induction furnace unit (b) may consult any technical authority for this purpose (c) determine by applying formula ACP-TCF]x 3200, where, ACP. Annual Capacity of Production, TCF Total capacity of furnacess, however, before determining capacity the Commissioner did not resort to above formalities. (iv) Aggrieved against the ex-parte determination of capacity of production, the petitioners made representations dated 25-3-1998, 3-4-1998, 28-4-1998 and 20-11-1998, (Annexure 4, 5, 6 and 7 ). The petitioner also sought the benefits under Section 3-A (4) of the 'act' and preferred an appeal before the 'cegat'. (The Central Excise and Gold (Control) Appellate Tribunal) New Delhi on 26-11-1998 which was dismissed treating the same beyond time by an order dated 31-3-1999 (Annexure 8-A ). (v) The controversy cropped up in the meanwhile with regard to the fact that where manufacturers could avail the benefit under Section 3-A (4) if they had applied for payment of excise duty under Rule 96-ZO (3) of the Central Excise Rules which prohibits the manufacturers to avail the benefit under Section 3-A (4) of the Act in case they had applied to pay the duty in terms of Rule 96-ZO (3) of the Rules. The petitioner had made two fold requests before the Commissioner firstly for refixation of capacity and re-determination of the duty in accordance with Section 3-A (2) read with Rule 3 of the Rules and secondly to grant the benefit to the petitioner under Section 3-A (4) of the 'act'. (vi) Since the Commissioner respondent No. 1 did not pass any order, therefore, the petitioner preferred Writ Petition No. 1127/99 praying therein that the respondent No. 1 be commanded to consider the application of the petitioners for granting the benefit under Section 3-A (4) of the 'act' and till that date no recovery be made against the petitioner. By order dated 28-2-2000 (Annexure 9), the writ petitioner was dismissed with indications that once the writ petition had agreed to discharge the liability of excise duty in terms of Rule 96-ZO (3), he could not claim the benefit under Section 3-A (4) of the 'act'. (vii) It has been contended on behalf of the petitioner that the 'cegat' had decided earlier that the manufacturers who agreed to pay excised duty in terms of Rules 96-ZO (3) can avail the benefit of Section 3-A (a) of the Act. However, the High Court in Writ Petition No. 1128/99, Jalan Alloys Limited v. Commissioner of Central Excise and others and the Hon'ble High Court Andhra Pradesh in the matter of Sathavana Steels and Alloys v. Government of India and others, 1999 (114) ELT-787, had decided that manufacturers who undertaken to pay the duty in terms of Rule 96-ZO (3) cannot avail the benefits that accrued from Section 3-A (4) of the Act, the Hon'ble Supreme Court, in the matter of Commissioner of Central Excise and Customs v. Venus Castings (Pvt.) Ltd. JT 2000 (4) SC 77, (Annexure 10) considered various cases decided by the CEGAT, New Delhi as well as the High Courts and held that the manufacturers who undertake to pay excise duty in terms of Rule 96-ZO (3) cannot avail the benefit that accrued under Section 3-A (4) of the Act. It was, however, indicated that the Hon'ble Supreme Court in its judgment has referred that the peripheral submissions made by various manufacturers with regard to the arbitrary fixation of capacity when not dealt with could to be decided in accordance with law [para 13 of Venus Castings (Supra)]. (viii) The Assistant Commissioner by its letter dated 24-3-2000 raised a demand of excise duty to the tune of Rs. 23. 13 lacs. Immediately the petitioner filed an application dated 1-5-2000 (Annexure 13) before the respondent No. 1 for refixation of total capacity of furnaces. (ix) It appears without deciding the application, the respondents were adopting coercive methods for payment of excise duty as such the petition filed a Writ Petition No. 452 of 2000 and Writ Petition No. 453/2000 [m/s. Jalan Castings (Pvt.) Ltd. v. C. C. E. and others] for a writ of mandamus commanding the respondent to hear and decide the application of the petitioner for refixing the annual capacity of the production in accordance with the Rules. During the pendency of the writ petition the respondent No. 2 dismissed the application by an order dated 22-5-2000 (Annexure 14 ). (x) The High Court taking note of the order dated 22-5-2000 has observed that during pendency of writ petition, an appealable order dated 22-5-2000 has been passed, therefore, the High Court by its order dated 25-5-2000 (Annexure 15) dismissed the Writ Petition No. 452 of 2000 and Writ Petition No. 453 of 2000 on the ground of alternative remedy to file an appeal under Section 35 of Central Excise 'tariff Act'. (xi) The petitioner preferred an appeal with stay application before respondent No. 1. The objections were too filed on behalf of the respondents. (xii) It appears since, the said appeals were not being heard and the respondents were coercing the petitioner to pay the amount, therefore, the petitioner preferred another Writ Petition No. 1199 of 2000 and Writ Petition No. 1200 of 2000 which were disposed of with directions to the respondent No. 1 to hear and decide the appeal No. E/2374/2000 and E/2406/2000 of the petitioner on merits preferably within a period of three months by order dated 28-11-2000 (Annexure 18 ). (xiii) In derogation to the directions in the order dated 28-11-2000 of this Court in spite of hearing the two appeals No. E/2374 and E/2406 [m/s. Jalan Casting (P) Ltd. v. CCE Allahabad], on merits the 'cagat' has by its order dated 8-1-2001 (Annexure 9) conveyed on 11-1-2001 while rejecting the above appeals as not maintainable has been pleased to observe that the order dated 22-5-2000 was only an administrative instruction and not appealable order as the final orders were already passed by the Competent Authority which were agitated by petitioner before Tribunal and the earlier order dated 20/21-3-1998 (Annexure II) had already attained finality. It has been submitted on behalf of the petitioner that the factory of the petitioner is closed since 24- 8-1998 and on 26-5-2000 the respondents have passed an order detaining the goods to the tune of Rs. 25 lacs and the respondents are now threatening to sell the said goods to recover the alleged dues from the petitioner.
(3.) IT has been contended on behalf of the petitioner that the orders dated 8-1-2001/11-1-2001 of learned Tribunal has been passed in utter disregard and in the teeth of the order dated 28-11-2000 of this Court, whereby directions were given to decide the appeals in question on merits. The respondents had neither preferred review before this Court or appeal before Supreme Court against the above order dated 28-11-2000 therefore, the learned Tribunal without making any comments on the order dated 22- 5-2000 was to follow order dated 28-11-2000. I have heard learned Counsel for the parties and perused the records and I, find force in the submission of Sri S. N. Verma, learned Senior Counsel for the petitioner. The order dated 28-11-2000 of this Court has neither been revised by this Court nor set aside modified by the Supreme Court and when this Court has no occasion to test the validity of order dated 28-11-2000 of this Court at this stage then how the learned Tribunal in its appellate jurisdiction indirectly test, the validity, of the same too and adopt and proceed in a contemptuous manner to evaluate whether order dated 22-5-2000 (Annexure 15) is appealable or not. When this Court by its order dated 28-11-2000 has in categorical and unequivocal terms has directed to decide the above two appeals against order dated 22-5-2000 on merits, as such, the learned Tribunal by its order dated 8-1-2001/11-1-2001 could not be allowed to say that the order dated 22-5-2000 is administrative instruction and not appealable one such understanding of learned Tribunal is not legally correct and sustainable, therefore, it is set aside and Writ Petition Nos. 170 of 2001 and 171 of 2001 are allowed with the directions to the learned 'cegat' to hear both the appeals No. E/2373 and E/2406 on merits of the case after hearing the parties and decide the same expeditiously within two months from the date of receipt of the certified copy of this order with the co- operation of parties. In the meanwhile no coercive measurers shall be adopted and the goods in question shall also not be put to auction sale for realisation of the dues in question. Petition allowed. .;