Writ Petition No. 2179 of 2004. Case: Shree Satpuda Tapi Parisar Sahkari Sakhar Karkhana Ltd. Vs UOI. High Court of Bombay (India)
| Case Number | Writ Petition No. 2179 of 2004 |
| Counsel | For Appellant: Shri A.P. Kolte, Advocate. and For Respondent: Shri Alok Sharma, ASG. |
| Judges | S.V. Gangapurwala and N.W. Sambre, JJ. |
| Issue | Constitution of India - Article 226 |
| Citation | 2014 (307) ELT 699 (Bom) |
| Judgement Date | April 09, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
S.V. Gangapurwala, J. (Oral)
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The petitioner assails the order passed by the respondent No. 2 thereby dismissing the appeal filed against the order passed by the respondent No. 3, so also the show cause notices.
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Mr. Kolte, the learned counsel submits that, the petitioner was issued with various show cause notices with regard to payment of excise duty upon molasses for a period from 1994 to 1997. The respondents withdrew all the show cause notices except the show cause notice issued for a period of January and February, 1995. According to the learned counsel the show cause notices are issued only on the sole basis that nearby sugar factory i.e. Shirpur Sahkari Sakhar Karkhana, Shirpur (hereafter referred as to the "Shirpur S.S.K.") had sold molasses at the rate of Rs. 1310/- per metric tonne, whereas the petitioner has shown the value of molasses at the rate of Rs. 850/- per metric tonne. The petitioner uses the said molasses for captive consumption. According to the learned counsel on the basis of the same facts, all other show cause notices are withdrawn, so on the basis of principle of judicial discipline said show cause notice is also required to be withdrawn. The learned counsel relies on the judgment of the Apex Court in a case of Birla Corporation Ltd. v. Commissioner of Central Excise reported in 2005 (186) ELT 266 (S.C.) and another judgment of in a case of Jayaswals Neco Ltd. v. Commissioner of Central Excise, Nagpur reported in [2006 (195) ELT 142 (S.C.) = 2007 (8) STR 305 (S.C.)].
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According to the learned counsel, it has not been considered that the molasses used by petitioner for captive consumption may be of different grade than that of the nearby sugar factory. The authority had sent the sample of the molasses to the technologist who had issued a certificate thai it would be valued at the rate of Rs. 1,000/- per metric tonne i.e. not at the rate of the molasses sold by the nearby sugar factory, still the Tribunal did not consider the said aspect. According to the learned counsel, it is the duty of the department to first assess the quality of molasses which has been considered as a comparative sale instance. Without considering the same the show cause notice could not have been issued.
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Mr. Sharma, the learned Assistant Solicitor General states that while giving reply to other show cause notices, the petitioner has raised the ground that the grade of molasses manufactured by it and used for captive consumption is different than that of Shirpur Sugar Factory, considering the said reply show causes notices were withdrawn. But no such stand was taken in respect of the show cause notice in question. According to the learned counsel in view of Rule 6(b) of the Central Excise (Valuation) Rules, 1975 the authority was justified in issuing show cause notice, so...
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