2012 (3) TMI 251 - HC - Central Excise

Dismissal of Writ Petition Over Denovo Proceedings by Tribunal

The Court dismissed the Writ Petition seeking to prevent denovo proceedings by the respondent following a final order by the Customs, Excise & Service ... Writ of Mandamus - rectification of mistake - denovo proceedings - judicial restraint in exercise of writ jurisdiction - special sitting for early hearing - administrative listing power of TribunalWrit of Mandamus - denovo proceedings - judicial restraint in exercise of writ jurisdiction - Petition for a writ directing respondent to refrain from initiating denovo proceedings pending disposal of the petitioner's application for rectification before the Tribunal. - HELD THAT: - The High Court declined to exercise its extraordinary writ jurisdiction to restrain the respondent from initiating proceedings under the tribunal's final order while the petitioner's application for rectification (E/ROM/28.11) remained pending before the Customs, Excise & Service Tax Appellate Tribunal. The Court observed that it is for the tribunal to consider and decide the application on merits and in accordance with law, and therefore it would not interfere at this stage to grant the relief sought by the petitioner. The petition was dismissed without staying action under the tribunal order.Writ petition dismissed; no prohibition granted against initiating denovo proceedings.Rectification of mistake - special sitting for early hearing - administrative listing power of Tribunal - Whether the petitioner may seek an early hearing of its rectification application before the Tribunal notwithstanding non-availability of regular bench sittings. - HELD THAT: - The Court noted that, owing to vacancy and absence of regular bench sittings, the petitioner may apply to the Assistant Registrar of the South Zonal Bench of the Customs, Excise & Service Tax Appellate Tribunal for a special/early hearing of Application No. E/ROM/28.11. The Court directed that on such an application being made the Assistant Registrar is expected to consider it and pass appropriate orders to facilitate an early hearing, leaving the merits of the rectification application to the tribunal.Petitioner permitted to apply to the Assistant Registrar for early hearing; Assistant Registrar to consider and pass appropriate orders.Final Conclusion: The writ petition praying for a directive restraining the respondent from initiating denovo proceedings was dismissed; the petitioner may seek early listing of its rectification application before the Tribunal by applying to the Assistant Registrar, who is expected to consider and pass appropriate orders. Issues:1. Petition for Writ of Mandamus to prevent denovo proceedings.2. Vacancy in the post of Member (Judicial) affecting the Customs, Excise & Service Tax Appellate Tribunal proceedings.3. Request for early hearing of the application by the petitioner.4. Decision on the interference with the order of the Customs, Excise & Service Tax Appellate Tribunal.Analysis:1. The petitioner sought a Writ of Mandamus to stop the respondent from initiating denovo proceedings following a final order by the Customs, Excise & Service Tax Appellate Tribunal. The petitioner filed an application for rectification of mistake, but it could not be heard due to the tribunal's vacancy in the post of Member (Judicial). The petitioner's counsel argued against initiating denovo proceedings until the rectification application was addressed.2. The respondent's counsel suggested that the petitioner could request early hearing of the application before the Assistant Registrar of the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, through a special sitting. The respondent did not support the petitioner's plea to halt denovo proceedings based on the tribunal's final order.3. The Court declined to interfere with the Customs, Excise & Service Tax Appellate Tribunal's order at that stage. It emphasized that the tribunal should review the petitioner's application for rectification and make decisions in line with the law. The Writ Petition was dismissed without costs. The petitioner was advised to apply to the Assistant Registrar for an early hearing of the application, which the Assistant Registrar was expected to consider promptly.4. The judgment emphasized the importance of the tribunal's review of the petitioner's application and the need for the petitioner to seek an early hearing through the appropriate channels. The decision not to interfere with the tribunal's order was based on the expectation that the tribunal would address the rectification application and make suitable determinations. The Court's stance was to allow the tribunal to handle the matter and for the petitioner to follow the necessary procedures for an early hearing.