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TMI Blog2012 (5) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 100% SSP (Staple Spun Polyester) multiple folded yarn falling under Chapters 52, 54, 55, respectively of the First Schedule to the Central Excise Tariff Act, 1985. It is also a Star Trading House and has paid crores in tax to the Government. (ii) There were disputes between the petitioner and the respondent in respect of dipped man made fabrics falling under Chapter 59 of the Central Excise Tariff Act, 1985. This was related to the demand of Rs.1,12,87,214.26, demanded by the Assistant Commissioner of Central Excise, Madurai and confirmed in appeal by the Commissioner of Appeals in his Order in Appeal No.115/2008. Against the said order of Appeal, the petitioner filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (in short 'CESTAT') in E/141/09, which is pending and stood posted for hearing on 16.02.2012. There was also a further demand for a sum of Rs.4,61,679/- by the Assistant Commissioner of Central Excise and confirmed in Appeal by the Commissioner of Central Excise (Appeals), Madurai in Order in Appeal No.209-210/2009. Against the said order, the petitioner filed an Appeal before the CESTAT in E/559/09. (iii) In respect of Appeal N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. In the meantime, the petitioner became eligible for rebates from the Department pursuant to rebate claims made by it under Rule 18 of the Central Excise Rules, 2002 r/w notification No.41/2001, which rebate claims had nothing to do with the petitioner's dispute before the CESTAT. However, Rs.24,45,167/- which became due to the petitioner by virtue of six orders in original, namely, OIO 45-50 of 2011 issued in the first week of May 2011 on rebate claims made by the petitioner, was appropriated by the respondent towards what he termed the 'outstanding arrears of the petitioner' which is the subject matter of the Appeal No.E/141/2009. (vi) Soon thereafter, the petitioner obtained extension of interim order from the Tribunal on 09.05.2011. Armed with the said order, the petitioner approached the respondent to release the appropriated amount of Rs.24,45,167/- on 10.05.2011 and 13.05.2011 without success. The petitioner had also taken out a Miscellaneous Application No.213 of 2011 before the CESTAT seeking refund of the appropriated amount to the petitioner and the petitioner also filed additional written submissions in this regard on 20.05.2011. However, no orders were passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2011 or make payment of the dues. The said letter reached the petitioner only on 18.11.2011 and the petitioner wrote to the respondent vide letter dated 19.11.2011 explaining that he was not in a position to produce the final order or the stay order within ten days and requested him not to take any action to recover the demand involved in the above appeals. However, the respondent paid no heed to these requests and payment of a sum of Rs.9,86,072/- which has been sanctioned to the petitioner towards rebate of duty claimed by him vide order in Original Nos.90 and 91/2011 dated 18.11.2011 was appropriated by the respondent towards the amounts, which are the subject matter of appeals before CESTAT. In order in Original No.90/2011, the respondent appropriated a sum of Rs.4,88,186/- and in Order in Original No.91/2011, the respondent appropriated a sum of Rs.4,97,886/-. (xi) Though these rebate claims were filed by the petitioner in August 2011 and certified by the jurisdictional Superintendent for sanction in September 2011, the respondent refrained from sanctioning the same till November 2011 and thereafter proceeded to withhold payment of the sanctioned amount and appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tch of Writ Petitions in W.P.(MD) No.13516 to 13518 of 2011 before this Court and as per the interim orders dated 25.11.2011 passed by this Court, the orders passed by the respondent were stayed. The telegram sent on behalf of the petitioner relating to passing of the interim order by this Court was received by the office of the Assistant Commissioner, Division No.I, only on 28.11.2011. Since the particulars regarding the sender were not clear, the petitioner was requested to provide a copy of the order referred in the telegram, as per the letter dated 29.11.2011 sent by the respondent. 3.3. The petitioner has filed another batch of Writ Petitions in W.P.(MD) Nos.13815 to 13818 of 2011 and got interim orders in their favour and as per the interim orders passed by this Court, the interim orders already granted by the CESTAT, Chennai have been extended for a further period with retrospective effect. The respondent has passed the impugned orders even prior to 25.11.2011 that too without knowing that interim orders were passed by this Court. After passing of the said orders, the dispatch section attached to the office of the Assistant Commissioner of Central Excise, Madurai I D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrued as punishing the assessees for matters which may be completely beyond their control. For example, many of the Tribunals are not constituted and it is not possible for such Tribunals to dispose of matters. Occasionally by reason of other administrative exigencies for which the assessee cannot be held liable, the stay applications are not disposed within the time specified. The reasoning of the Tribunal expressed in the impugned order and as expressed in the Larger Bench matter, namely, IPCL vs. Commissioner of Central Excise, Vadodara (supra) cannot be faulted. However, we should not be understood as holding that any latitude is given to the Tribunal to extend the period of stay except on good cause and only if the Tribunal is satisfied that the matter could not be heard and disposed of by reason of the fault of the Tribunal for reasons not attributable to the assessee. (ii) 2005 (182) E.L.T. 109, (Tri.-Mumbai), ISPAT Industries Ltd. vs. Commissioner of Central Excise, RAIGAD : "The action recovering disputed amount during the pendency of applications for extension of stay are clearly an abuse of Tribunal's process. The effect of such an action is to render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. Manifestly, interest under section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under sub-section (1) of Section 11B of the Act and that the said explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable. " (iv) 2012 (275) E.L.T. 404 (Kar.), Commissioner of Central Excise, Banagalore - III vs. Stella Rubber Works (Unit-II) : "4. The learned counsel appearing for the revenue contended that by virtue of Section 11 of the Central Excise Act, 1944, the revenue was empowered to adjust the amounts due to the revenue by way of interest out of the amount due b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa6 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed. 12. Such subsequent event may be one purely of law or founded on facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e now sought to be set up by the appellant. We do not think this Court would be justified in taking notice of a fact sought to be projected by the appellant in a very cavalier manner. The fact remains that the present one is a landlord-tenant dispute and we cannot upset the relief granted by the courts below and the High Court to the plaintiff-respondent by relying on the doctrine of eviction by title paramount as it cannot be said that the proceedings initiated by HUDA against the plaintiff-respondent have achieved a finality or are such proceedings wherein the plaintiff-respondent cannot possibly have any sustainable defence." (iv) (2009) 10 SCC 425, Laxmidas Morarji (dead) by Lrs. vs. Behrose Darab Madan : "25. Article 142 being in the nature of a residuary power based on equitable principles, the Courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t payable is paid. The power is not circumscribed by any condition. The condition precedent is that the amount of service tax levied remains payable when the power is exercised. The pendency of an appeal before the CESTAT or the Commissioner (Appeals) or before this Court does not in any manner whittle down the power under Section 87(c) of the Act." 6. I have heard the learned counsel for the parties and also gone through the records. 7. The issues involved in all these Writ Petitions as to the demand for making payment of the dues and the appropriation of sanctioned amount of rebate towards the outstanding arrears are disputed questions of facts, which cannot be gone into by this Court at this stage in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. Furthermore, aggrieved over the orders of the Department, the writ petitioner has already filed appeals before the Tribunal, namely, CESTAT, and the same are pending. 8. It may be true, the reason for filing these Writ Petitions is non-functioning of the Tribunal. Noting the said factor, this Court, on 25.11.2011, granted interim stay of the orders impugned till the constitution of T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... status quo until further orders, but not to take advantage of the expiry of stay and no extension thereof, which were wholly due to non- availability of the quorum. Interestingly, the respondent, by an affidavit, dated 22.02.2012, has informed this Court that subsequent to receipt of telegram on 26.11.2011, the orders of this Court, dated 25.11.2011, have been strictly complied with and the subsequent rebate claims sanctioned and disbursed by way of cheques to the petitioner. 11. As this Court is not competent to decide the disputed questions of facts involved in these Writ Petitions and it is only the Tribunal, which is the appropriate forum to deal with the said questions and in seisin of the matters, the parties are directed to approach the Tribunal and put forth their contentions whenever the said Tribunal is constituted, for deciding the issues. It is made clear that the rebate claims disbursed to the petitioner are only by way of an interim measure and the same are subject to the outcome of the appeals before the Tribunal and that no coercive steps shall be taken by the respondent against the petitioner towards demands. The Tribunal shall decide the appeals on their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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