Court No. - 27 Case :- MISC. BENCH No. - 722 of 1998 Petitioner :- Fazal Ahmad Respondent :- Union Of India & Others Petitioner Counsel :- R.K.Srivastava Respondent Counsel :- U.K.Dhaon Hon'ble Devi Prasad Singh,J.
Hon’ble S.C. Chaurasia,J.
Writ petition under Article 226 of the Constitution of India has been preferred
against the impugned show cause notice dated 29.1.1997 by which petitioner
has been directed to deposit the additional excise duty and to execute a bond
for a sum of Rs. 95445.00/-.
Shri K.D.Nag, learned counsel appearing on behalf of the respondents submits
that writ petition has been preferred at premature stage. Petitioner has got
option to submit a reply against the impugned notice and adjudication
authority shall decide the same after considering the argument raised by the
petitioner. It has been submitted that though there is exemption with regard to
excise duty but in view of law settled by the Hon’ble Supreme Court no
exemption can be claimed for additional excise duty or other duties. There
appears to be no doubt that petitioner has got option to submit a reply in
pursuance to impugned notice and adjudicating authority who according to
Shri K.D.Nag is the Assistant/Joint Commissioner excise shall adjudicate the
matter in accordance with law. Accordingly, without entering into merit of
the controversy liberty is given to the petitioner to submit a reply to the
adjudicating authority within a month from today. It has been brought to
notice of this court that against the decision taken by the adjudicating
authority, petitioner has got option to prefer an appeal under Section 35 of the
Central Excise Act.
In view of above, present writ petition seems to be preferred at premature
stage. Liberty is given to the petitioner to submit a reply to the impugned
notice within a period of one month against the impugned notice to the
adjudicating authority, who shall look into the matter and decide the
controversy after considering the ground raised by the petitioner in
accordance to law by passing a speaking and reasoned order expeditiously and
preferably within a period of two months and communicate the decision. For
the period of two months or till disposal of representation by the adjudicating
authority whichever is earlier status quo shall be maintained as exists today.
However, it is provided that in case, already adjudicating authority had
decided the matter then it shall be open for the petitioner to prefer an appeal
under Section 35 of the Central Excise Act and in case such appeal is
preferred the same shall be entertained and decided on merit.
Writ petition is disposed of accordingly.
Order Date :- 7.1.2010
Madhu