Quashed

S.P.Fabricators Pvt.Ltd. v. Union of India and Ors.

Bombay HC21 Feb 2007WP/892/2007

Case brief

AI extract

What is this about?

Incoming High Court set aside a CESTAT order that determined a matter as infructuous merely because a further order was pending. The Court remanded the matter for a decision on the merits regarding the Deputy Commissioner's pecuniary jurisdiction.

What did the court decide?

Quashed the impugned order dated 29th December, 2006 and remanded the matter to CESTAT to decide the issue of pecuniary jurisdiction on merits.

S.P.Fabricators Pvt.Ltd. Vs Union of India and… — Civil Procedure and Limitation | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.892 OF 2007

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S.P.Fabricators Pvt.Ltd. ..Petitioner Vs. Union of India & Ors. ..Respondents

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Mr.Sridharan with Mr.T.Vishvanathan i/b.M/s.PDS Legal for the Petitioner. Mr.P.S.Jetly with Mr.Parag Vyas for the Respondents.

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CORAM :- DR.S.RADHAKRISHNAN & J.P.DEVADHAR,JJ. DATE : 21ST FEBRUARY,2007

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P.C.

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Heard the learned Counsel for the parties. Rule. Rule is made returnable forthwith. The learned Counsel for the Respondents waives service. By consent taken up for hearing.

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2.		By this	Petition,		the	Petitioner is
challenging		the	order dated	29t	h	December,2006	passed
by the		CESTAT.	The brief	facts	are,	that in	the
aforesaid		order,	the CESTAT	had	merel	y proceeded	on
the	basis	that	the earlier o	rder	of	the Com	missioner
(Appeals)		setting	aside the		Depu	ty Comm	issioner’s
order	has	alread	y been acted	upon	as	the matter	was
readjudicated.		It	appears		that	the	Deputy
Commissioner	,	in	his Order	in	Original	dated	16th

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April,	2004	held in favour	of	the Petitioner, and
dropped	the	show cause	notice	issued to the
Petitioner.		Aggrieved th	ereby	the Respondent-Revenue
had	filed	an Appeal before	the	Commissioner (Appeals)
and	the	same was allow	ed o	n 18th March,2005.
Aggrieved	the	reby the Assessee	had	filed an Appeal
before	the	CESTAT. The	said	Appeal was admitted,
however,	the	stay application	sought	in the said
Appeal	was	rejected by the	CESTAT	by order dated 26th

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July,2005 on the ground that there was no demand

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against the Petitioner.

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During the pendency of the above Appeal, the

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Commissioner had adj	udicated the show cause notice	and
passed an exparte	order on 30th Septemb	er,2005
confirming the	demand. Aggrieved thereby,	the
Petitioner had mov	ed CESTAT and the CESTAT, in	the
Appeal had set	aside the same and remanded back	the
matter to the Com	missioner (Appeals) by an order	dated
19th April,2006	for a De-Novo adjudication and	the
matter is pending	before the Commissioner (A	ppeals).
The present order	has been passed by the C	ESTAT
against the order	dated 18th March,2005 passed by	the
Commissioner. The	Tribunal has merely proceeded	on
the basis that the	matter was remanded back and	also
the Commissioner’s	order has already been acted	upon.
On the contrary, th	e Tribunal ought to have decided	on
merit the order	dated 18th March,2005 against	which
the present Appeal	was filed before the CESTAT.	The

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main issue before the Tribunal was whether the Deputy Commissioner had pecuniary jurisdiction to adjudicate

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the show cause notice, which issue ought to have been decided by the CESTAT.

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4. In this behalf, the learned Counsel for the
Petitioner brought to our notice the ju	dgment of	the
Hon’ble Supreme Court in the case of	Nagesh	Datta
Shetti and Others Vs. State of Karna	taka, 2005	(10)
SCC 383, wherein the Hon’ble Supreme	Court has	in
almost similar circumstances held that	the	Division
Bench should have considered the matt	er on	merits
without concluding that the writ appeal	had	become
infructuous. In view thereof, under	the	aforesaid
circumstances, we are inclined to quash	and set	aside
the order dated 29th December,2006 and	remand bac	k the
matter to CESTAT to decide the afores	aid issue	whether
the Deputy Commissioner had the	pecuniary j	urisdiction
to adjudicate upon the show cause	notice.	CESTAT
shall decide the same strictly on its	own merits	in

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accordance with law. Rule is accordingly made

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absolute.

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(J.P.DEVADHAR,J.)

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(DR.S.RADHAKRISHNAN,J.)

S.P.Fabricators Pvt.Ltd. v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

S.P.Fabricators Pvt.Ltd. v. Union of India and Ors.

Case brief

What is this about?

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