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2005 DIGILAW 196 (GUJ)

ELECON ENGINEERING CO. LTD v. UNION OF INDIA

2005-03-17

D.A.MEHTA, H.N.DEVANI

body2005
D. A. MEHTA, J. ( 1 ) THE petition is filed to challenge seven show cause notices issued by respondent Nos. 2 and 3, because according to the petitioner, the issues raised in the show cause notices are on the same grounds which have already been decided in favour of the petitioner in number of proceedings relatable to earlier periods. ( 2 ) THE petitioner Company is engaged in the manufacture of Material Handling Equipments and parts thereof and is holding a license under the Central Excise Act, 1944 (the Act) and Central Excise Rules, 1944 (the Rules ). The petitioner is discharging duty liability on the goods manufactured in its factory before / at the time of clearing the said manufactured goods. During course of its business activity, the petitioner Company undertakes manufacture and supply of plant and machinery on the basis of what is known in common parlance as Turn Key Projects. That for such activity, the petitioner utilises certain components which are manufactured and cleared from its factory after bearing the duty under the Act, certain other items / components purchased from open market which are duty paid, and lastly, it carries on erection, fabrication and commissioning of the entire plant at the site as per terms of contract. It is the case of the petitioner that, in past, the respondent authorities had issued similar show cause notices in relation to (1) bought out items on which duty had been paid, and (2) on the process of erection, fabrication and commissioning of the project. That the petitioner having tendered its explanation by filing replies to the various show cause notices, the authorities had adjudicated upon the same and passed various orders in original as well as the order in appeal whereunder it was held by the authorities that the petitioner was not liable to pay any duty either on such bought out items or on the activity of erection, fabrication and commissioning of the project. In support of the aforesaid submission, at Annexure "a" (collectively) various such orders have been placed on record. A summary of the said orders reads as under : ( 21 ) BEFORE parting, it is necessary to express the anxiety of the Court in matters involving revenue. This petition was admitted as far back as on 13th September 1999, but the affidavit in reply has been sworn on 9th March 2005. A summary of the said orders reads as under : ( 21 ) BEFORE parting, it is necessary to express the anxiety of the Court in matters involving revenue. This petition was admitted as far back as on 13th September 1999, but the affidavit in reply has been sworn on 9th March 2005. When the matter came up for hearing on 23rd February 2005, a statement by Mr. Shaikh was made and the Court has recorded the same in the following words :"mr. Shaikh, the learned advocate appears and states that he has instructions to appear on behalf of respondents. He prays for time to obtain papers and instructions. He is directed to file his appearance. The matter to come up on 3rd March 2005. "21. 1 thereafter, the matter was posted on 10th March 2005 and from 10th March 2005 to 16th March 2005. When the matter was called out on 16th March 2005, it appears that there was confusion amongst the counsel as to whether Mr. Shaikh was to represent the matter or whether Mr. Malkan was to represent the respondents. Ultimately, Mr. Malkan has addressed the Court, but it needs to be noted that he was neither ready with the facts nor the law and during course of hearing, the Court had to wait till he obtained instructions in the matter from the officers present in the Court. In this context, one can do no better than reiterate what the Apex Court has observed in relation to such a situation in case of K. L. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin, 1997 (90) E. L. T. 241 (SC), as under:"the Union of India should take care to entrust these sensitive cases of far reaching effect, in particular on question of law, to Counsel who have experience and ability in that branch of law to defend their cases. Lest it is public justice that suffers and economy of the country is put to jeopardy. Unfortunately, the Counsel did not make any effort to analyze the provisions of the act nor did he make investigation into question of law from the decisions rendered by this Court. Lest it is public justice that suffers and economy of the country is put to jeopardy. Unfortunately, the Counsel did not make any effort to analyze the provisions of the act nor did he make investigation into question of law from the decisions rendered by this Court. At this juncture, it is further relevant to point out that when the Union of India has its panel of Counsel, they should see to it that work is assigned to the Counsel who can competently argue the case in that behalf lest, for lack of assistance, investigation and marshalling the questions of fact and law, public justice tends to suffer. We would greatly appreciate the Counsel appearing for the appellant who placed for consideration all aspects of the case on law and facts. It is, therefore, for the Secretaries of the Department of Law and Justice and Finance to look into the matter and set their house in order; equally, the Attorney General of India should also see that the affairs in the Central Agency in the Supreme Court are organised accordingly. We have pointed out all this only to express our deep anxiety as the burden on the Court is multiplied to undertake unto itself the task of investigating into all aspects to consider the case so as to reach satisfactory conclusion. " ( 22 ) IN the result, the petition is allowed. The seven show cause notices at Annexure "c" (collectively) are hereby quashed and set aside in light of the fact that, for the reasons stated hereinbefore, no excise duty is exigible on bought out items, erection and fabrication charges and commissioning charges on the Turn Key Project. Rule made absolute. Costs payable by the respondents are quantified at Rs. 10,000=00. .