TaxTMI 
TaxTMI 
2010 (4) TMI 169
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....ommissioner of Central Excise, Raigad Commissionerate, 4th Floor, Utpad Shulk Bhavan, Plot No.1, Sector - 17, New Panvel (W) - 410 206 Versus 1. M/s.Ispat Industries Limited, Geetapuram, Dolvi - 402 107 Taluka: Pen, Dist.: Raigad. 2. The Joint Secretary, Government of India, Ministry of Finance, 14, Hudco Vishala Building, BWing, 6th Floor, Bhikaji Cama Place, New Delhi - 110 066 Mr.R.G. Bhat with Mr.R.B. Pardeshi i/by Mr.J.B. Mishra for the petitioners. Mr.V. Sridharan with Mr.Jitu Motwani, Ms.Lakshmi Menon and Mr.Jas Sanghavi i/by PDS Legal for respondent No.1. CORAM: Dr.D.Y. Chandrachud & J.P. Devadhar, JJ. ORAL JUDGMENT (Per Dr.D.Y. Chandrachud, J.) 1. This judgment would govern two petitions, one instituted by Ispat Industries Limited (Ispat) and the second, by the Union of India, through the Commissioner of Central Excise, Raigad. Both the petitions have been heard together. The petition instituted by Ispat questions the validity of an order passed on 30 November 2004 by the third respondent, the Deputy Commissioner of Central Excise to the extent that it holds that a refund of education cess of Rs.5.52 lakhs is inadmissible to the company and a show cause notice d....
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.... and that the amount of education cess involved was retained by the Assessing Authority for the reason that education cess is not a part of excise duty. Relying on an order passed by the Commissioner (Appeals) in the case of some other assessee, Ispat moved the aforesaid application on 20 December 2005. The application was rejected by the Assistant Commissioner on 28 December 2006 and the rejection was affirmed by the Commissioner (Appeals) on 24 July 2007. Ispat thereupon moved a revision before the Government of India which was allowed by the revisional authority on 11 September 2009. 4. The Union of India issued a notice to show cause on 22 December 2009 calling upon Ispat to explain as to why the claim for refund should not be disallowed inter alia on the ground that Ispat had not filed any appeal before the Commissioner (Appeals) against the orders sanctioning only the component of basic excise duty and though the orders, it was stated, had attained finality. The fresh claim filed by Ispat on 20 December 2005 was beyond the period of limitation specified under Section 11B of the Central Excise Act and was barred by limitation. 5. Ispat instituted the petition under Article ....
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.... would have to be exercised independent of any consideration of the correctness of the order. 7. The facts as they have emerged before the Court would establish that Ispat had moved an application for a rebate in respect of the component both of the basic excise duty and the education cess initially on 8 September 2004. The claim for rebate to the extent of education cess was rejected on 30 November 2004. The claim for rebate was allowed only in respect of the basic excise duty. Ispat had moved four other applications in which the same view was taken by the Assessing Authority and, as a matter of fact, cheques were received by Ispat representing the quantum of rebate only in respect of the component of basic excise duty. Ispat chose not to challenge the order passed by the Deputy Commissioner of Central Excise on 30 November 2004 rejecting the claim of rebate in respect of education cess. No appeal was filed against that order. Ispat received and accepted the cheques in the other claims and did not challenge the denial of the rebate qua education cess. On 20 December 2005, over a year after passing of the first order an application was moved before the Assessing Authority seeking ....
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....r passed by the revisional authority is evidently in error for the reason that the application by Ispat on 20 December 2005 was not maintainable in view of the rejection of its earlier application on 30 November 2004 and by the subsequent orders rejecting similar applications. 9. It has been urged on behalf of Ispat that the rejection of the application on 30 November 2004 was without hearing it and that the order being a nullity can be challenged at any stage. Reliance was sought to be laced on the judgment of a Constitution bench of the Supreme Court in State of U.P. V/s.Mohammad Nooh {AIR 1958 SC 86} in which the Supreme Court held that the power of the Court to issue a writ of certiorari can be exercised despite the availability of an alternate remedy. Where a court or tribunal, which is called upon to exercise judicial or quasijudicial functions discards all rules of natural justice and arrives at a decision contrary to all accepted principles of justice, the Supreme Court held that the court can and must interfere. This principle has been applied in the judgments of a Division Bench of this Court in WASP Pump Private Pimited V/s. Union of India {2008 (230) E.L.T. 405 (Bom)} ....