TMI Blog2016 (6) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the final decision in the classification matter by common adjudicator CCE, Vapi, more so, in the light of the submissions advanced by the petitioners that the revenue has taken two contrary stands as regards classification of the product of Unicorn Industries. In the opinion of this court, when a case comes up before a quasi-judicial authority, it is bound to decide the same in accordance with law as per the situation as prevailing at the relevant time. An adjudicating authority cannot keep a matter in abeyance indefinitely to await the outcome of one proceeding after another. Period of limitation - Impugned order barred by limitation, estoppel and acquiescence - Held that:- considering the approach of the DGCEI in not concluding the investigation for a considerable period of time and the conduct of the CCE, Vapi in sending the matter to the Call Book to await the decision of the Supreme Court in the SLP filed by the Supreme Court, no fault can be found in the conduct of the petitioner in waiting for a reasonable time for the remanded proceedings to be concluded and then challenging the same in the light of the above facts. For this reason, the above contention does not merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioners that in view of rule 18 of the Central Excise Rules, 2002 the petitioner Company was entitled to rebate of excise duties paid on these goods exported by it and therefore, the petitioner Company had been exporting these goods under claim of rebate by following the procedure for exporting the goods. The petitioner Company lodged rebate claims in connection with the duties paid on eighty seven consignments of Pan Masala manufactured and exported by it in the month of June, 2011. The total duties paid on the goods exported in June 2011 was ₹ 2,81,33,060/- and hence, the petitioner Company claimed the above aggregate amount of ₹ 2,81,33,060/- as rebate. A show cause notice dated 18.11.2011 came to be issued to the petitioner Company proposing to reject all the rebate claims on the ground that condition laid down at Serial No.2(e) of Notification No.19/2004-CE(NT) dated 06.09.2004 read with rule 18 of the Central Excise Rules, 2002, stood contravened as regards the rebate claims. In response thereto, the petitioner Company filed a detailed reply dated 07.12.2011. After hearing the petitioner, the Assistant Commissioner of Central Excise rejected the rebate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be pleased to issue a Writ of Mandamus or any other appropriate writ, direction or order, holding and declaring that the petitioner s rebate claims were liable to be decided on merits and in accordance with Rule 18 of the Central Excise Rules, 2002 and be further pleased to direct the Assistant Commissioner of Central Excise, the 2nd Respondent herein, to decide the petitioner s rebate claims aggregating to ₹ 2,81,33,060/- accordingly; 5. Mr. Paresh Dave, learned advocate for the petitioners invited the attention of the court to the directions issued by the revisional authority in the impugned order dated 01.10.2012, to point out that the matter had been remanded for fresh decision taking into account the outcome of DGCEI investigation as well as the final decision in classification matter by common adjudicator CCE Vapi. Further, the applicability of condition 2(h) of Notification No.19/04-CE (NT) was also to be examined. Reference was made to the communication dated 26.12.2012 addressed by the Assistant Commissioner, Central Excise Division, Gandhinagar addressed to the Additional Director General, DGCEI, Ahmedabad, calling upon him to intimate him about the outcome of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted that it is in the light of the aforesaid directions issued by the revisional authority that the second respondent is not in a position to proceed further in the remand proceedings. It was, accordingly, urged that the petitions deserve to be allowed by setting aside the directions issued by the revisional authority while remanding the matter to the second respondent for fresh decision and that the second respondent is required to be directed to decide the rebate claims at the earliest, in accordance with law. 6. Mr. Darshan Parikh, learned Senior Standing Counsel for the respondents, vehemently opposed the petitions on the ground that the challenge to the order dated 01.10.2012 is barred by delay and laches, inasmuch as, the order is passed in October, 2012, whereas the present petitions challenging the same have been filed in September, 2015, after a period of almost three years. It was submitted that the petitioners have acquiesced with the order of the Government and have submitted to the jurisdiction of the appropriate authority for fresh decision and have accepted the fact that the orders will have to be passed after considering the other proceedings referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners are constrained to approach this court by way of the present petitions seeking the reliefs noted hereinabove. 8. From the facts noted hereinabove, it is evident that though by the impugned order dated 1st October, 2012, the revisional authority has remanded the matter to the second respondent for a fresh decision, at the same time it has also directed the second respondent to take into account the outcome of DGCEI investigation as well as the final decision in classification matter by a common adjudicator, Commissioner of Central Excise, Vapi. Insofar as the DGCEI investigation is concerned, it is the case of the respondents that the investigation is complete and that a show cause notice has been issued in the matter, which is still pending adjudication. Insofar as the final decision in the classification matter by a common adjudicator viz., Commissioner of Central Excise, Vapi is concerned, the communication dated 30.10.2015 addressed by the Assistant Commissioner (Adj), Central Excise, Customs Service Tax, Silvassa to the second respondent reveals that in view of the pendency of SLP against the judgement and order of the Sikkim High Court pending before the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e kept pending indefinitely to await the decision in some other matter. While the order of the revisional authority, to the extent the case is remanded for verification is concerned, the same cannot be faulted with. But further verification could not have been contingent upon the outcome of the other proceedings, namely, the investigation by the DGCEI and the final decision in the classification matter by common adjudicator CCE, Vapi, more so, in the light of the submissions advanced by the learned counsel for the petitioners that the revenue has taken two contrary stands as regards classification of the product of Unicorn Industries. In the opinion of this court, when a case comes up before a quasi-judicial authority, it is bound to decide the same in accordance with law as per the situation as prevailing at the relevant time. An adjudicating authority cannot keep a matter in abeyance indefinitely to await the outcome of one proceeding after another. 11. As noted hereinabove, insofar as the investigation by the DGCEI is concerned, the same is concluded and a show cause notice has been issued to the petitioners which is pending adjudication and may take its own time. Insofar as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regards the contention that the challenge to the impugned order is barred by limitation, estoppel and acquiescence, in the opinion of this court considering the approach of the DGCEI in not concluding the investigation for a considerable period of time and the conduct of the CCE, Vapi in sending the matter to the Call Book to await the decision of the Supreme Court in the SLP filed by the Supreme Court, no fault can be found in the conduct of the petitioner in waiting for a reasonable time for the remanded proceedings to be concluded and then challenging the same in the light of the above facts. For this reason, the above contention does not merit acceptance. 14. For the foregoing reasons, the petitions succeed and are allowed to the following extent: The impugned common order No.1351-1352/12-CX dated 01.10.2012 passed by the Joint Secretary, Government of India, New Delhi is hereby set aside to the extent the same directs the second respondent to take into account the outcome of DGCEI investigation as well as the final decision in classification matter by a common adjudicator, Commissioner of Central Excise, Vapi. Consequently, the second respondent authority is directed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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