TMI Blog2009 (6) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to exemption. This issue is yet to be adjudicated and it is not finalised. Hence, in absence of any adjudication, it is not just and proper for us at this stage, to quash and set aside the show-cause notices. Appeal partly allowed - Special Civil Application No.1608 of 2002, Special Civil Application No.2670 of 2004, Civil Application No. 3465 of 2009 - - - Dated:- 19-6-2009 - A.L. Dave and K.A. Puj, JJ. MR PARESH M DAVE with MR DHAVAL SHAH, MR RAKESH GUPTA WITH MR UDAY JOSHI for M/s. Trivedi Gupta, MR RJ OZA, Sr. Standing Counsel for the Petitioner MR RJ OZA, Sr. Standing Counsel, MR DARSHAN M. PARIKH, Sr. Standing Counsel for the Respondent Common ORAL Judgment Per : K.A. Puj, J. (Oral) - Since common issue is involved in both the petitions and since both the petitions were heard together, the same are being disposed of by this common judgment and order. 2. In Special Civil Application No. 1608 of 2002, the petitioner, namely, M/s. Marck Parenterals India Limited has challenged the Circular No. 334/1/2001-TRU, dated 28-2-2001 issued by the Joint Secretary, Department of Revenue, Ministry of Finance and also the show-cause notice issued on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Condition No. 47A 30 Intravenous Fluids Nil - - 10. Thus, the above exemption was not restricted to I.V. Fluids used for sugar, electrolytes or fluid replenishment as alleged in the impugned show-cause notices, but was available to all I.V. Fluids irrespective of their use. In the Budget for the year 2001, the aforesaid Notification No. 6/2000 came to be withdrawn and a new Notification No. 3/2001, dated 1-3-2001 came to be issued. The entry of the said Notification at relevant time, reads as under :- Sr. No. Chapter of heading No. or sub-heading No. Description of goods. Rate under the First Schedule Rate under the Second Schedule Condition No. 56 30 Intravenous Fluids which are used for sugar, electrolyte or fluid replenishment Nil - - 11. Thus, in the above Notification, exemption came to be restricted making it available to intravenous flui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... els appearing for the petitioners. 14. In Inter Continental (India) v. Union of India, 2003 (154) E.L.T. 37 (Guj.), this Court has taken the view that it is not permissible to read some additional words in a notification, much less any condition where none have been prescribed. The entire matter is governed wholly by language of the notification and in a case where the plain term of the exemption show that the tax payer falls within the same, benefit cannot be denied by relying upon supposed intention of the exempting authority. This judgment was also relied on for the proposition that the Circulars issued by the Board may bind the officers of the department yet the position would be different with regard to an assessee who is always entitled to contest the validity or leaglity of such instructions. This decision was challenged before the Hon'ble Supreme Court and while dismissing the appeal, the Hon'ble Supreme Court in the case of Union of India v. Inter Continental (India), 2008 (226) E.L.T. 16 (S.C.), held that the department, by issuing subsequent to the notification could not add new condition to the notification thereby restricting the scope of exemption notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise of writ jurisdiction by this Court, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Collector of Central Excise and Land Customs v. Sanawarmal Purohit, 1979 (4) E.L.T. J613 (S.C.). wherein it is held that ordinarily the High Court will decline to interfere until the party claiming to be aggrieved by the order of a quasi judicial authority has exhausted the other remedies, if any, available to him. The rule that before a writ of certiorari is claimed, an aggrieved party should exhaust the statutory remedies is one of convenience and not a rule of law. If the inferior tribunal has acted without, or patently in excess of, jurisdiction, or has conducted the proceeding before it in a manner contrary to the rules of natural justice, or offending the sense of justice and fairplay, the High Court would be competent to exercise its power to issue the prerogative writ of certiorari to correct the order of the Court or tribunal, even if an appeal to a departmental authority or tribunal was open and the aggrieved party did not avail himself of that remedy. 19. Based on the above authorities, submission is made before the Court that the benefit grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have, therefore, submitted that the petitions should not be entertained by this Court. 22. Mr. Oza in support of his submission has relied on the decision of the Hon'ble Supreme Court in the case of [Special Director Anr. v. Mohd. Ghulam Ghouse Anr. [2004 (164) E.L.T. 141 (S.C.) = 2004 (3) SCC 440]], wherein it is held that challenge to the show-cause notice should not be entertained by the Court. 23. We have heard learned Counsels appearing for the parties at length and considered various authorities cited before the Court in light of the facts found on record. As far as challenge to the communication issued by the Joint Secretary is concerned, we are in agreement with the submissions made on behalf of the learned Counsels appearing for the petitioners and we are of the view that the Joint Secretary is not justified in adding certain words to the notification dated 1-3-2001. It operates prospectively and petitioners were paying excise duty on I.V. Fluids not used for sugar, electrolyte or fluid replenishment. However, the dispute which is involved in the present petitions is pertaining to the period between 4-5-2000 to 28-1-2001 and duty was demanded on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing more than that, in that case, the issue so raised will have to be decided in accordance of law. 25. In the above view of the matter, while setting aside the impugned Circular, we are of the view that the show-cause notice is not solely based on the said Circular and hence, the petitioners are required to represent their case before the respondent-authorities in pursuance of the show-cause notices issued on them. As observed earlier, since the proceedings were allowed to go on and they have already made their submissions before the authorities, the respondent-authorities are, therefore, directed to adjudicate the issue in accordance with law, without being influenced by the said Circular and appropriate order would be passed on the basis of the materials available with them. 26. Though pursuant to the interim order passed by this Court, the petitioners have made their submissions, the final order is not yet passed and hence, it is open for the petitioners to make their further submissions before the authorities and after considering fresh submissions, if so made and after giving them an opportunity of being heard, final order may be passed in accordance with law and withou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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