Bharat Kumar Mahensaria vs Commissioner of Customs

Ajoy Nath Ray, J.—Mr. Sen submits that as under the Kar Vivad Samadhan Scheme the main person who was given notice has been granted immunity, upon his acceptance of half liability, the other persons who were also given notice somewhat as aiders and abettors, cannot now be proceeded against by way of filing of appeal.

The order sought to be appealed from has exonerated completely all these other persons who were served with notice.

The show cause notices are, however, not annexed to the writ petition.

Mr. Sen relies upon an annexed Departmental circular to the effect that the subsidiary show cause notices, so to speak cannot be further proceeded with if the person concerned with the main show cause notice has availed himself of the Kar Vivad Samadhan Scheme.

Mr. Sen also submits on the basis of the The Paper Products Ltd. Vs. Commissioner of Central Excise, that the Department is bound by the Board''s circulars.

Mr. Sen''s contention might very well be right, but a complete and fully efficacious remedy is available to Mr. Sen''s client by bringing these points to the notice of the appellate authority, which, if it sees eye to eye with the writ petitioner, might well dispose of the appeal in favour of the writ petitioner.

However, it is not proper that the writ application be rejected. The writ application will remain on record. The results of the appeal are awaited.

Order and observations are without prejudice.

Formal drawing up and service of rule dispensed with.

Affidavit-in-opposition is to be filed by two weeks after reopening, affidavit-in-reply is to be filed one week thereafter and the matter will appear in the list on the working day following.

Notwithstanding the pendency of the writ the appellate authority will be free to dispose of the appeal in accordance with law.

All parties and all others concerned to act on a signed copy of this related order on the usual undertakings.