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TMI Blog2003 (4) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2002 petitioner is praying for the similar relief. 3.. Submission of the petitioner is that proceedings under section 29(1) cannot be initiated. Petitioner submits that the period of limitation prescribed for reopening the assessment under section 29(1) is 3 years from the date of any adverse decision rendered by any order of any court or Tribunal which has become final. Vandana Sales Corporation decision dated December 4, 1995 was in the knowledge of the assessing officer. If at all, the department wanted to invoke the provision of section 29(1), it could have done so within three calendar years from December 1, 1995. Therefore, the proposed assessment is without jurisdiction. Subsequent decision cannot be basis for initiating reassessment under section 29. Thus, the notices P/6 and P/7 and order P/10 are illegal, void and without jurisdiction and are without authority of law. It is further submitted that once the appeal against assessment for 1996-97 is pending, hence, there is no justification in reopening the assessment. Hence, the proposed proceedings are illegal, void and without jurisdiction. Nomenclature of the discount is not decisive of whether the same is permissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. [1980] 46 STC 220 (Mad.) have been discussed and the law has finally been settled. Pendency of the appeal against the order is no bar under section 29(1) to reopen an assessment. 5.. Shri Sumit Nema, learned counsel for the petitioner has submitted that the proceedings are barred by limitation and limitation has to be computed with effect from decision in Vandana Sales Corporation Limited which was decided in the year 1995. Limitation for proceedings under section 29 cannot be computed from Bajaj Sevashram Limited. 6.. Shri Shashank Shekhar, has submitted that final order has yet to be passed. Petitioner can raise all the questions in appeal against the final order. Against the proposed order sent to the petitioner along with communication P/10 petitioner has submitted representation P/11, in which virtually same objections have been raised. Authority has yet to decide and pass the final order. Thus, no interference is called for at this initial stage. 7.. In my opinion as no final order has been passed at this juncture and it is open to the petitioner to raise all the questions before the authority under the Madhya Pradesh Commercial Tax Act, 1994. Show-cause is just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The decision of the High Court was set aside, it was held by the High Court that respondents' product was not taxable to excise duty, the jurisdiction of the High Court was questioned. Resolving this question, the apex Court has held that fact-finding authority under the relevant statute must be approached first, High Court should not have interfered in a writ petition at the stage of show cause notice to take over fact-finding investigation. The apex Court has observed in para 3, thus: 3. We find that the question involved is a question of fact, 'whether the properties and characteristics of agglomerated marble remain the same as those of excavated marble?' we find that the High Court has gone into questions of fact to resolve this question. The resolution of questions of fact such as this should, we think, be best left to the fact-finding authorities constituted under the relevant statute. The High Court should not have interfered, in a writ petition, at the stage of the show cause notice to take over the fact-finding investigation. 11.. In Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. [1985] 154 ITR 172 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... majority of the petitions under article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged. 12.. In Dewas Tools Pvt. Ltd. v. Union of India (1996) 87 ELT 25, this Court has held that at the stage of issue of a show cause notice High Court should not exercise jurisdiction under article 226 of the Constitution of India. 13.. A division Bench of High Court of Calcutta in Union of India v. Sigma Electronics (1996) 87 ELT 26 has held that power under article 226 of the Constitution is extraordinary in nature, writ court not to intervene without there being any infringement of right. Intervention by the court is not called for at the stage of issue of show cause notice. 14.. A single Bench of this Court in Shree Synthetics Ltd. v. Union of India (1999) 114 ELT 791 held that a writ petition which was filed against the show cause notice and revenue had not passed any final order, interference was not required to be made as efficacious alternative remedy was available writ petition was held to be premature. Proceedings before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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