P.B. Majmudar, J. - (1.) IN all these three petitions since the circular which is under challenge is common, these petitions are taken up together and with the consent of learned Counsel for the parties, the same are decided by this common order.
(2.) IN each of these cases, the petitioner is challenging the show cause notice issued by the Department by which the petitioner Company was required to show cause as to why the duty of excise, interest and penalty should not be imposed upon the petitioner underR.25 of the Central Excise Rules, 2002. As per the said show cause notice issued to one of the petitioners RSWM in D.B. Civil Writ Petition No. 1242/2007, the petitioner Company is engaged in manufacture of cotton yarn and Man Made Yarn of Synthetics and artificial staple fibers classifiable under Chapters 52, 54 and 55 of the First Schedule to the Central Excise Tariff Act, 1985, and appear to have not paid duty of excise amounting to Rs. 2709213/ - (CENVAT Rs. 2656091/ - + Education Cess Rs. 53122/ -) on their finished goods, by wrongly availing the benefit of CE dt. 09.07.2004, during the period from 01.11.2005 to 31.03.2006. Details of the same is annexed along with the show cause notice at Annex. "A". It is alleged that the petitioner Company wrongly availed the benefit of CENVAT and, therefore, liable for reversal of such credit. The petitioner without even replying to the said show cause notice, straightway approached this Court by filing the present writ petitions. This Court while admitting the appeal passed the following order: Learned Counsel for the petitioner points out that after issuance of show cause notice, the Central Board of Excise and Custom has issued a circular on 01.02.2007 issuing directions which results in sealing the defence taken by the petitioner before the adjudicating authority because of the binding nature of the circular of the adjudicating authority. He, therefore, contends that for challenging the validity of notification dt. 01.02.2007 which effectively closes the defence and its adjudication by the adjudicating authority leaves him no option but to invoke extraordinary jurisdiction of this Court as the proceedings through the regular course have been infructuated by the aforesaid circular.
(3.) THE petitions are opposed by the Department on various grounds. It has been pointed out by learned Counsel for the respondents Mr. V.K. Mathur as well as by Mr. Rajesh Joshi that the petitioners have filed these writ petitions at show cause notice stage while the authority is yet to adjudicate the matter finally after considering the reply. It is vehemently contended by learned Counsel for the respondents that the circular dt. 01.02.2007 is clarificatory in nature and the same is not issued to dilute the law laid down by the Supreme Court as alleged by the petitioners as the show cause notice has been issued prior in time and it is issued mainly on the ground that the petitioners have wrongly taken the benefit of credit by taking shelter of the notification dt. 01.02.2007. It is also submitted that in this view of the matter, this writ petitions deserve to be dismissed and this Court should not exercise its extraordinary jurisdiction while entertaining this petition at show cause notice stage. Learned Counsel for the respondent Department further submitted that it is a case where the petitioners have wrongly availed the credit, and therefore, after adjudicating the matter, it is for the authority to consider whether any order for reversal of credit and consequential benefit of penalty etc. is required to be passed. It is submitted that no case is made out for quashing the show cause notice and that powers of this Court are very limited as regards interference at the show cause notice stage is concerned.;