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TMI Blog2010 (9) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... ; The order is against the principles of natural justice; it is illegal and is set aside. - 1139 and 1187 of 2010, - - - Dated:- 27-9-2010 - [ Order]. This case has pained us. Even if the stand of the revenue is correct though there are doubts about it this is not the way to go about doing it. Here are the facts. THE FACTS 2. The petitioner claims to manufacture Recycled Polyester Staple Fibre since 2000. According to the petitioner it is neither an excisable good nor any excise duty is leviable on the same. The petitioner has also been filing returns showing them as non-excisable goods. 3. A notice under Section 11-A of the Central Excise Act (the Act) was issued to the petitioner for charging excise duty on the same. The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition was entertained. However, prayer for challenging the notices were deleted and the petitioner was asked to file its reply before the competent authority. The respondents were also restrained from interfering with the functioning of the petitioner's factory. 9. The petitioner was subsequently given a notice dated 13.08.2010 asking it to execute a bond for the amount of assessable value likely to be cleared during the month. The petitioner did so but filed another Writ Petition No.1187 of 2010 (the second WP) challenging these notices. 10. The second WP was also entertained and interim order was granted on 27.08.2010. However, it was clarified that it would be open to the respondents to decide the question of classification of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be considered. We accordingly proceed to decide the writ petitions including validity of the order dated 04.09.2010. 18. The counsel for the petitioner submitted that : (i) No reasonable opportunity was given before passing the order dated 04.09.2010. The notice dated 03.09.2010 was received late in the evening asking them to appear and show cause on the same day. No objection could also be filed as the case was decided next day; (ii) The instructions issued by the Board can neither override the statutory provisions contained in Note 1 Chapter 54, a part of the Tariff Act; (iii) The judgement of the Tribunal is in favour of the petitioner. The instruction of the Board can neither override it nor nullify it; (iv) The note 1 of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Denning put it, But it is fundamental in our law that the means that are adopted to this end should be lawful means. A good end does not justify bad means. The means should not be such as to offend against the fundamental freedom, the privacy and elemental rights of property. 25. They did not say anything new but derived it from age old principles of natural justice. This is universal. Here is a case from another part of the World. 26. In TVA Vs Hill (57 L.Ed 2nd 117) the question involved before the US Supreme Court was, should the construction of a dam over Little Tennessee River be stopped? The reason was that it might end the natural habitat of an endangered snail darter, a three-inch tannish coloured fish, found in the river. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ete the constructions. 29. The notice dt. 3.9.2010 was served the same day in the evening. The order classifying the petitioner's goods was passed on the next date. The petitioner's goods were earlier held to be non-excisable by the Tribunal. The instructions may be issued under section 37-B of the Act but it is doubtful if they can nullify a judgment though principles of res-judicata do not apply in taxing statutes. In our opinion, It is not such an issue that could be decided in such a shoddy manner without affording reasonable opportunity to the petitioner; The order is against the principles of natural justice; It is illegal and is set aside. INTERIM ARRANGEMENT 30. We have quashed the order classifying the petitioners goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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