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TMI Blog2019 (2) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... ds purchased for its Power Plants. 2. The first writ petition being DB Civil Writ Petition No.4487/2014 came to be filed by the petitioner Company with following prayers :- "(i) The impugned Fifth Summon dated 30.05.2014 Annex.31 alongwith other 'impugned summons' may be quashed and set-aside; (ii) the petitioner company may kindly be allowed to avail the CENVAT Credit on capital goods on the basis of Board's Clarification dated 18.09.2012 Annex.11 and further hold that the petitioner has been rightly availing the CENVAT Credit on capital goods used in power plant situated within the factory premises. (iii) The respondents may also kindly be directed to stop the inquiry and/or investigation of settled issue as the same is against the principles of res judicata." 3. As is evident from the pleadings and prayers reproduced above; the writ petition came to be filed essentially against the summons issued by the respondents. The Division Bench of this Court had issued notices of the writ petition albeit, without granting any interim protection. 4. During the pendency of the writ petition, on 06.01.2016, a Division Bench of this Court after hearing both the sides directed the Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid show-cause notice, the petitioner Company filed another writ petition being DB Civil Writ Petition No.10286/2016 laying a separate challenge to the notice. The Officers of the company also filed three separate writ petitions on 16.4.2018, challenging the show cause notice dated 20/22.07.2016, initiating the penalty proceedings against them. 7. A reply to the aforesaid writ petitions came to be filed by the respondents, wherein besides joining the issues on merit, the respondents have raised preliminary objections questioning the maintainability of the writ petitions. 8. No sooner had the learned Senior Counsel for the petitioner Company commenced his arguments, than learned Additional Solicitor General interjected and sought leave to make his submissions on the maintainability of the writ petition. He firstly contended that the first writ petition being DB Civil Writ Petition No.4487/2014, challenging the issuance of summons has been rendered infructuous inasmuch as in furtherance of the summons issued to the petitioner Company and its Officers, they have appeared and the adjudicating authority has not only completed its investigation, but has issued a show-cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me was indisputably done to honour the directions issued by this Court on 06.01.2016. He contended that said order of the High Court was in the nature of interlocutory order, hence, the writ petition deserves to be decided on its merit, as the very jurisdiction of the Superintendent, Central Excise/ Dy. Commissioner of Central Excise to issue summons to the petitioner has been brought to judicial scrutiny of this Court much prior to the issuance of show cause notice dated 20/22.07.2016. 14. While maintaining that the Company's first writ petition against the summons has not been rendered infructuous, Mr. Bagaria argued that other four writ petitions, laying challenge to the show-cause notice dated 20/22.07.2016 can well be heard and decided by the Principal Seat, inasmuch as the respondents had made enquiries and summoned evidence for both the plants viz. Raas and Beawar. He contended that indisputably Raas plant of petitioner Company is amenable to territorial jurisdiction of the Principal Seat and since the genesis of the litigation is rooted in the territorial jurisdiction of Principal Seat; merely because impugned show-cause notice does not propose to disallow the CENVAT Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers of the Excise Department, the enquiry has been completed, and the same has culminated into issuance of the show-cause notice dated 20/22.07.2016, the writ petition against the summons has been rendered infructuous. We have no hesitation in holding that once a show-cause notice has been issued in furtherance of the summons, nothing remains to be adjudicated in a writ petition, which had been filed against the summons. 20. Learned senior counsel for the petitioner contended that notwithstanding the Court's prima-facie opinion that the instant writ petition qua first prayer regarding the summons has been rendered infructuous, the petitioner's writ petition still survives at least to the extent of prayer No.2, vide which the petitioner has prayed that it be declared that the petitioner has rightly availed the CENVAT credit on capital goods used for power plant situated in the factory premises. 21. In our considered opinion, no sweeping declaration as prayed for by the petitioner in its prayer clause No.(ii) can be made. Right of a manufacturer to avail CENVAT Credit is dependent upon hoards of factors and such right is to be adjudicated and determined by the Officers of the Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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