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2017 DIGILAW 687 (JK)

Kapoor Baboo Gupta v. UOI

2017-08-19

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J 1. Petition is admitted for hearing. 2. With consent of the learned counsel for the parties, the matter is heard finally. 3. In this writ petition, the petitioner inter alia has assailed the validity of the order dated 14.07.2016 by which a demand of Rs.9,30,000/- under Section 11AC of the Central Excise Act, 1944 has been raised by the respondents. 4. Facts giving rise to the filing of this writ petition briefly stated are that the petitioner is the proprietor of M/s Gupta Suppliers Co. The firm is engaged in the business of purchase of crude Mentha Oil from the area of cultivation of Mentha herbas as a cash crop and sold in the shape of Mentha oil as an agricultural product in the open market without any restriction. The petitioner is registered as dealer with authorities under the provisions of Value Added Tax Act in the State of Uttar Pradesh. The petitioner is engaged in the business of supplying Mentha Oil to various respective Units especially situate in the State of J&K and North East. The Government of Jammu and Kashmir vide notification dated 14.11.2002 launched a scheme for the Units engaged in the manufacturing of excisable goods in the State of Jammu and Kashmir entitling them for refund of excise duty which was paid from PLA and the duty so paid on the goods was entitled to be availed as CENVAT Credit by their Buyers. The petitioner was served with show-cause notice dated 27.12.2012 by which the petitioner was asked to show cause as to why penalty be not imposed on him. The petitioner challenged the aforesaid show-cause notice in OWP No.348/2013 inter alia on the ground that the same is contrary to the office memorandum dated 14.06.2002. A bench of this Court by an ad interim order dated 13.03.2013 stayed the operation of the impugned show cause notice. However during the pendency of the aforesaid writ petition and operation of the ad interim order granted by this Court, the respondents have again issued the impugned order dated 14.07.2016. 5. Learned counsel for the petitioner submitted that the impugned order dated 14.07.2016 is per se without jurisdiction as the same has been passed in violation of the ad interim order dated 13.03.2013 passed by a Bench of this Court in OWP No.348/2013. 5. Learned counsel for the petitioner submitted that the impugned order dated 14.07.2016 is per se without jurisdiction as the same has been passed in violation of the ad interim order dated 13.03.2013 passed by a Bench of this Court in OWP No.348/2013. It is further submitted that the aforesaid demand has been raised without affording any opportunity of hearing to the petitioner. Learned counsel for the respondents was unable to dispute the factum of filing of the writ petition and the ad interim order dated 13.03.2013. 6. We have considered the submissions made by the learned counsel for the parties. Admittedly, OWP No.348/2013 is pending before this Court in which a Bench of this Court has passed the ad interim order dated 13.03.2013, while the interim order is in operation, the respondents could not have issued the impugned demand notice dated 14.07.2016. The impugned demand notice is per se issued without jurisdiction. Besides that, it has been passed with affording an opportunity of hearing to the petitioner. Therefore, the same cannot be sustained in the eye of law. It is accordingly, quashed. Needless to state that the respondents are at liberty to proceed against the petitioner afresh in accordance with the law. 7. Accordingly, the writ petition shall stand disposed of.