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TMI Blog2013 (9) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... ail the opportunity and having raised all the points including the issue of the validity of the Rules before the Adjudicating Authority, cannot be allowed to file this writ petition challenging the vires, only to avoid filing the appeal - It was apparent that having failed to substantiate his case before the Adjudicating Authority, instead of filing the appeal the petitioner was taking a chance in the High Court to challenging the vires of the proviso – Decided against Petitioner. - Writ Tax No. - 831 of 2013 - - - Dated:- 20-9-2013 - Hon'ble Sunil Ambwani And Hon'ble Surya Prakash Kesarwani,JJ. For the Petitioner : Nishant Mishra For the Respondent : A. S. G. I. ORDER 1. We have heard Shri Nishant Mishra, learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a penalty should not be imposed under Rule 17 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 read with Rule 25 of Central Excise Rules, 2002 for the contraventions. 4. The petitioner challenged the notice in Writ Tax No.756 of 2013 three years after the show cause notice was issued. On 10.9.2013 a statement was made by Shri Gopal Verma, learned counsel appearing for the petitioner, that after filing of the writ petition the Order-in-Original has been passed against which the petitioner proposes to file an appeal. The writ petition as such has become infructuous. The Court accepted the statement of learned counsel for petitioner, and dismissed the writ petition as infructuous. 5. The Order- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in appeal he may have to deposit the amount. 9. The challenge to the vires of the Rules in this second writ petition is barred by principles of constructive res judicata inasmuch as if the petitioner is aggrieved by the Rules, he could have challenged the Rules, when the Rules were notified or when the notice to show cause was served on him, and in any case in the first writ petition challenging the notice. The petitioner having failed to avail the opportunity and having raised all the points including the issue of the validity of the Rules before the Adjudicating Authority, cannot be allowed to file this writ petition challenging the vires, only to avoid filing the appeal. 10. It is apparent that having failed to substantiate his ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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