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TMI Blog2015 (7) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... that the challenge of the petitioner succeeds. The show cause notice dated 9th February, 1994 and the order in original dated 30th November, 2005 are set aside. Mr. Bharadwaj had submitted that the show cause and the order in original could not be set aside since the appellate order was duly made and therefore cannot operate in a vacuum. The point thus raised has also been answered by the Supreme Court in Mohammad Nooh (1957 (9) TMI 42 - SUPREME COURT). - WP No. 1545 of 2008 - - - Dated:- 27-7-2015 - ARINDAM SINHA, J. Mr. J.P. Khaitan, Sr. Adv., Mr. Sanjoy Bhowmick, Adv., Mr. Partha Banerjee, Adv. for the petitioner Mr. R. Bharadwaj, Adv., Mr. K.K. Maiti, Adv. for the respondents ORDER The Court : The writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the proviso to Section 11A of the Central Excise and Salt Act, 1944. An adjudication order followed upholding the demand made in the show-cause notice. The petitioner however preferred an appeal beyond the period of limitation provided and as such the same was not considered on merits. Mr. Khaitan relied on a decision in the case of U.P. State vs. Mohammad Nooh reported in AIR 1958 SC 86 in which, inter alia, the following was stated: It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari. If, therefore, the existence of other adequate legal remedies is not per se a bar to the issue of certiorari and if in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court s sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nooh (supra) had been held to be not applicable to the facts and circumstances of that case which, according to Mr. Bharadwaj, were similar to the facts and circumstances of the case at hand. He thus submitted that the writ petition was not maintainable. On merits he submitted there had been wilful suppression though the phrase wilful suppression was neither used in the show-cause notice nor in the adjudication order. He submitted that the show-cause notice was duly issued in asking the petitioner to show-cause which it had failed to do. He relied on the following portion of the show-cause notice: The facts of basic function of Transwitch , Field Switch and Stator Rotor Panel as Electrical Transformer and current Transformer re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n arose regarding the suit being barred by limitation. The Supreme Court rejected the contention that the orders of the authorities negating the claim of the plaintiff, upon merger should be taken as the starting point of limitation in spite of cause of action accruing to the plaintiff on his dismissal. On such point the Supreme Court had held as it did in discussing a somewhat similar point raised in Mohammad Nooh (supra) where the cause arising in the year 1948 was sought to be addressed under Article 226 of the Constitution of India which came into being in the year 1950, on the ground of merger. As such, this Court finds Mohammad Nooh (supra) was overruled on a different point regarding merger of orders of Tribunals and courts as powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the word wilful preceding the words mis-statement or suppression of facts which means with intent to evade duty. A perusal of the show cause notice and the adjudicating order does not also reveal there has been any allegation or finding of wilful misstatement or suppression of facts by the petitioner inasmuch as it was not disputed that the detailed functioning of the switches and stator panel was obtained from the petitioner subsequently. The classification made by the petitioner not having been demonstrated to be a wilful mis-statement or there being wilful suppression of facts with regard thereto, this Court finds that the challenge of the petitioner succeeds. The show cause notice dated 9th February, 1994 and the order in o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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