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TMI Blog2016 (9) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... otice - In Hon'ble Supreme Court in the case of State of West Bengal vs. Karan Singh Binayak, [2002 (3) TMI 910 - SUPREME COURT], it is held that inherent power under Section 151 of the CPC cannot be invoked, to re-open settled matters. Since, the order impugned in this Appeal is an order passed by the Writ Court in W.P. No. 36494 of 2015 on 04.02.2016, this Court does not possess any jurisdiction to annul or modify or invalidate or overturn the earlier decision of the Writ Court in W.P. No. 9496 of 2014 dated 02.04.2014, which is not the subject matter of the present Writ Appeal. We deem it fit that an opportunity should be given to the appellant department, to put forth their contention on merits before the Writ Court, along with the Miscellaneous Petition - the matter is remitted back to the writ court, to reconsider the matter afresh - appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period January 2014 to March 2014. Aggrieved by the said show cause notice, the respondent company filed W.P. No.36494 of 2015. During the course of hearing of the said writ petition, the appellant requested the Court to list M.P. No.1 of 2015 in W.P. No.9496 of 2014, for hearing, but the same was not done, due to paucity of time. On 04.02.2016, after hearing both sides, Writ Court allowed W.P.No.36494 of 2015 and set aside the show cause notice dated 12.10.2015. Challenging the same, department has filed the instant appeal before this Court. 4. Learned Senior Standing Counsel for the appellants submitted that Section 73 of Chapter V of Finance Act, 1994, authorises the Central Excise officers to issue notice, demanding specified amount of service tax. Depending upon the monetary limit and vide paragraph 2.2 of Circular No. 80/1/2005-ST dated 10.08.2005, based upon the Notification No.30/05-ST dated 10.08.2005 and the subsequent Circular No.130/12/2010-ST dated 20.09.2010, Central Excise Officers, namely, Assistant Commissioner, Deputy Commissioner, Joint Commissioner, Additional Deputy Commissioner, as the case may be, are authorised by the Board to decide the issuances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t matter of the present writ appeal and hence challenging the correctness of the subsequent order passed by the Writ Court, is beyond the scope of the present appeal. 7. Heard Mr.Sundareswaran, learned Senior Panel Counsel for the appellant department and Mr.Arun Karthik Mohan, learned counsel for the respondent company and perused the material on record. 8. The present Appeal has been filed against the order passed by the Writ Court, in W.P. No. 36494 of 2015 dated 04.02.2016. Writ Petition has been filed challenging the show cause notice in C.No.IV/09/103/ 2015/ST-III ADJ dated 12.10.2015 issued by the first appellant. The respondent company is engaged in generation of 105.66 MW electricity in the power plant of M/s. Samalpatti Power Company Private Limited, situated at Parandapalli Village, Pochampalli Taluk of Krishnagiri District. During the month of March 2014, a demand letter dated 28.03.2014 was issued by the 2ndappellant, requiring the respondent to deposit service tax, for the period from January to March 2014, for generating electricity. The aforesaid demand letter dated 28.03.2014 has been challenged before this Court in W.P. No. 9496 of 2014 on the ground that coerciv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it in the writ petition. While the writ petition was taken up for hearing on 27.01.2016, learned counsel for the department has requested the Court to list the Miscellaneous petition filed by them, for modifying the order made in W.P. No. 9496 of 2014, to be heard along with the present writ case. The aforesaid Miscellaneous petition was not listed on 04.02.2016. However, the Writ Court allowed the Writ Petition No.36494 of 2015, on 04.02.2016, observing as follows :- "9. When the respondent is bound by the directions given by this Court and when this Court had directed the petitioner to submit their objections by treating the impugned proceedings as show cause notice and when this Court directed the respondent to consider the same and pass orders in accordance with law, after giving an opportunity of personal hearing to the petitioner company, the issuance of the 2ndshow cause notice, contrary to the direction of this Court in W.P. No. 9496 of 2014, is liable to be set aside. 10. It is also brought to the notice of this Court that the respondents have not filed any appeal, as against the order passed in W.P. No.9496 of 2014. Even the application for modification of the order was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of the tribunal has rightly come to the conclusion that the various documents and orders which were sought to be treated as show cause notices by the appellate authority are inadequate to be treated as show cause notices contemplated under Rule 10 of the Rules or Section 11Aof the Act. Even the Judicial Member in his order has taken almost a similar view by holding that letters either in the form of suggestion or advice or deemed notice issued prior to the finalisation of the classification cannot be taken note of as show cause notices for the recovery of demand, and we are in agreement with the said findings of the two Members of the tribunal. This is because of the fact that issuance of a show cause notice in a particular format is a mandatory requirement of law. The law requires the said notice to be issued under a specific provision of law and not as a correspondence or part of an order. The said notice must also indicate the amount demanded and call upon the assessee to show cause if he has any objection for such demand. The said notice also will have to be served on the assessee within the said period which is either 6 months or 5 years as the facts demand. Therefore, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled matter after nearly four decades in the purported exercise of inherent powers. It has not even been suggested that there was any collusion or fraud on behalf of the writ petitioners or the erstwhile owners. There is no explanation much less satisfactory explanation for total inaction on the part of the appellants for all these years." The respondent also relied on the following decisions:- 1.Paledugu Nagar Atnamma v. Kogani Seetharamamma, (AIR 1952 Mad. 237), wherein it has been held that the Court has to be approached by way of a review or by way of an appeal, to set right the omission. 2.Hindustan Aluminium Corporation Ltd., vs. Superintendent, Central Excise, Marzapur, reported in 1981 (8) ELT 642 (Del.). 3.Gwalior Rayon Mfg. ( Weaving) Co. vs. Union of India, reported in 1982 (10) ELT 844 MP. 4.Grafton Isaacs v. Emery Robertson [(1984) 3 WLR 705], this decision has been adopted and applied, with the approval of seven Judges of the Constitution Bench of the Hon'ble Supreme Court, on the preposition that an order made by a Court of unlimited jurisdiction must be obeyed, unless and until it has been set aside by an Appellate Court. 5.Bihari Silk and Rayon Process ..... X X X X Extracts X X X X X X X X Extracts X X X X
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