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2014 (12) TMI 817 - HC - Central ExciseQuashment of order dated 14.02.2014 - Appeal not preferred by Revenue in similar matter in previous case - Held that - Merely because in some cases, the revenue has not questioned the correctness of an order passed by the Tribunal or the High Court on the same issue, it would not operate as a bar for the revenue to challenge the order in another case - petitioner is having statutory remedy against the order of Adjudicating Authority under Section 35-B of the Central Excise Act, 1944 - writ petition is dismissed on the ground of availability of statutory alternative remedy with liberty to the petitioner to file an appeal before the CESTAT, New Delhi to challenge the impugned order - Decided against assessee.
Issues:
1. Maintainability of the writ petition under Article 226 of the Constitution of India. 2. Availability of statutory remedy under Section 35 (B) of the Central Excise Act, 1944. 3. Interpretation of exemption notifications and demand of excise duty. 4. Applicability of res judicata principle and non-filing of appeal by the department. 5. Precedents related to revenue challenging orders and statutory remedies. Issue 1: Maintainability of the writ petition under Article 226 of the Constitution of India The petitioner sought quashment of an order passed by the Adjudicating Authority, arguing that the issue was similar to a previous case where the show cause notice was quashed. The department contended that the writ petition was not maintainable as the petitioner had not availed the statutory remedy under Section 35 (B) of the Central Excise Act, 1944. The court noted that an appeal to the Appellate Tribunal was available against the impugned order. Issue 2: Availability of statutory remedy under Section 35 (B) of the Central Excise Act, 1944 The demand of excise duty for the period 2003 to 2007 was challenged by the petitioner based on the quashing of an earlier demand. The court highlighted that the petitioner had a statutory remedy under Section 35-B of the Central Excise Act, 1944 against the order of the Adjudicating Authority. Consequently, the court dismissed the writ petition, allowing the petitioner to file an appeal before the CESTAT, New Delhi to challenge the impugned order. Issue 3: Interpretation of exemption notifications and demand of excise duty The court discussed the evolution of exemption notifications related to intravenous fluids and the demand notices issued to the petitioner. Changes in exemption notifications led to demand notices for specific periods. The court considered the impact of these notifications on the demand of excise duty against the petitioner. Issue 4: Applicability of res judicata principle and non-filing of appeal by the department The court examined the principle of res judicata and the department's decision not to appeal against certain orders. It was noted that the non-filing of an appeal by the department did not create a hurdle for the revenue. Precedents were cited to support the argument that the revenue could challenge orders even if not questioned in previous cases. Issue 5: Precedents related to revenue challenging orders and statutory remedies Precedents were cited to establish that the revenue could challenge orders despite not questioning them in earlier cases. The court referred to specific cases and highlighted the importance of statutory remedies available to parties involved in excise duty disputes. In conclusion, the court dismissed the writ petition on the grounds of the availability of a statutory alternative remedy under Section 35-B of the Central Excise Act, 1944. The petitioner was granted liberty to file an appeal before the CESTAT, New Delhi to contest the impugned order dated 14.02.2014.
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