2019 (2) TMI 1220 - HC - Central Excise

Court dismisses writ petition challenging summons as infructuous, transfers related petitions for adjudication. No declarations on CENVAT Credit.

Shree Cement Limited Versus Union of India, The Chief Commissioner, The Commissioner-II, The Dy. Commissioner (Anti-Evasion-II), The Dy. Commissioner, Central Excise Division, The Superintendent (Anti Evasion-II) And The Superintendent, Central Excise Range

The court dismissed the writ petition challenging the summons as infructuous and transferred the remaining writ petitions concerning the show-cause notice ... CENVAT credit - capital goods purchased for its Power Plants - Board’s Clarification dated 18.09.2012 - discontinuance of inquiry and/or investigation of settled issue - principles of res-judicata - Held that:- Since pursuant to the summons issued to the petitioner Company and in compliance of the order dated 06.01.2016 passed by this Court in petitioner’s own writ petition, the petitioner and its representatives have appeared before the Officers of the Excise Department, the enquiry has been completed, and the same has culminated into issuance of the show-cause notice dated 20/22.07.2016, the writ petition against the summons has been rendered infructuous. We have no hesitation in holding that once a show-cause notice has been issued in furtherance of the summons, nothing remains to be adjudicated in a writ petition, which had been filed against the summons. No sweeping declaration as prayed for by the petitioner in its prayer can be made. Right of a manufacturer to avail CENVAT Credit is dependent upon hoards of factors and such right is to be adjudicated and determined by the Officers of the Excise Department on the touch stone of the statutory provisions and existing facts. We outrightly decline to pronounce upon the petitioner’s entitlement to avail CENVAT Credit on the available facts. Petition dismissed. Issues Involved:1. Maintainability of the writ petition against the issuance of summons.2. Jurisdiction of the court to hear the writ petitions.3. Petitioner's entitlement to avail CENVAT Credit on capital goods used for power plants.Detailed Analysis:1. Maintainability of the Writ Petition Against the Issuance of Summons:The petitioner, Shree Cement Limited, filed a writ petition challenging the summons issued by the Central Excise Department. The court noted that since the officers of the petitioner company appeared before the adjudicating authority as directed by the court, and the enquiry culminated in a show-cause notice, the original writ petition against the summons was rendered infructuous. The court stated, 'once a show-cause notice has been issued in furtherance of the summons, nothing remains to be adjudicated in a writ petition, which had been filed against the summons.' Consequently, DB Civil Writ Petition No.4487/2014 was dismissed as infructuous.2. Jurisdiction of the Court to Hear the Writ Petitions:The respondents argued that the writ petitions should be heard by the Jaipur Bench since the Beawar Plant, which is the subject of the show-cause notice, falls within its territorial jurisdiction. The court agreed, stating, 'the subsequent writ petitions assailing the show-cause notice dated 20/22.07.2016 are required to be heard and decided by Jaipur Bench of this Court, as the Beawar Plant of the petitioner Company falls within the territorial trajectory of Jaipur Bench of this Court.' Therefore, the writ petitions (DB Civil Writ Petitions No.10286/2016, 5490/2018, 5492/2018, and 5512/2018) were transferred to the Jaipur Bench for further proceedings.3. Petitioner's Entitlement to Avail CENVAT Credit on Capital Goods Used for Power Plants:The petitioner sought a declaration that it had rightly availed CENVAT credit on capital goods used in the power plant situated within the factory premises. The court declined to make such a declaration, emphasizing that 'the right of a manufacturer to avail CENVAT Credit is dependent upon hoards of factors and such right is to be adjudicated and determined by the Officers of the Excise Department on the touch stone of the statutory provisions and existing facts.' Thus, the court refused to pronounce upon the petitioner's entitlement to avail CENVAT Credit based on the available facts.Conclusion:The court dismissed the writ petition challenging the summons as infructuous and transferred the remaining writ petitions concerning the show-cause notice to the Jaipur Bench for adjudication. The court did not make any declarations regarding the petitioner's entitlement to CENVAT Credit, leaving such determinations to the appropriate authorities based on statutory provisions and facts. The court also clarified that it had not pronounced upon the merit or maintainability of the writ petitions against the show-cause notice, allowing both parties to advance arguments on these issues at the Jaipur Bench.