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Judgment
Honourable Mr. Justice M. Jaichandren
Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. Even though the petitioner had raised a number of grounds in the writ petition, while challenging the impugned circular, dated 11.6.2008, issued by the Ministry of Finance, Department of Revenue, Government of India, the main contention of the learned counsel appearing on behalf of the petitioner is that the said circular is binding on the second respondent and therefore, the decision of the second respondent would be influenced by the said circular, while passing an order, pursuant to the impugned show cause notice issued by him, on 19.10.2010.
At this stage of the hearing of the writ petition, an additional counter affidavit had been filed on behalf of the second respondent, dated 20.2.2012. Paragraph-4 of the counter affidavit reads as follows:
In obedience to the above order, I respectfully submit that in pursuance of the said Show Cause Notice, dated 19.10.2010 and the reply to be filed by the petitioner, order will be passed by me as a quasi-judicial authority in accordance with the provisions of the Finance Act, 1994 and the Rules thereunder. In the judgment reported in 1999 (109) ELT 129 (Cal.), it has been held that "... under the Central Excise & Salt Act the assessing authorities exercise quasi-judicial functions..." I will undertake to pass the order on the above Show Cause Notice based on the factual matrices involved in this case and uninfluenced by the circular dated 11.6.2008 issued under F.No.345/6/2008-TRU. At this juncture, it is relevant to extract the provisions of Section 37B of the Central Excise Act, 1944.
Instructions to Central Excise Officers.__
The Central Board of Excise and Customs.... may, if it considers it necessary.., issue such orders, instructions.... as it may deem fit and such officers... shall observe and follow such orders, instructions and directions of the said Board:
Provided that no such orders, instructions or directions shall be issued ----
a) so as to require any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner; or
b) so as to interfere with the discretion of the Commissioner of Central Excise (Appeals) in the exercise of his appellate functions."
This position of law has been appreciated by various judicial pronouncements reported in Orient Paper Mills Ltd. Vs. Union of India (UOI), Cether Vessels Ltd. Vs. Assistant Collector of Central Excise, Genest Engineers Pvt. Limited Vs. Union of India, The essence of these judgments conclude holding that directions or instructions issued by the Board are binding on officers only when acting in administrative capacity but not to interfere with quasi-judicial powers of assessing officers.
In such circumstances, without going into the merits of the matter, this Court finds it appropriate to direct the petitioner to file its fresh objections, if any, to the show cause notice, dated 19.10.2010, issued by the second respondent, raising all the grounds available to it, within fifteen days from the date of receipt of a copy of this order. On receipt of such objections, the second respondent shall consider the same and pass appropriate orders thereon, on merits and in accordance with law, within a period of four weeks thereafter, after affording the petitioner an opportunity of personal hearing and by taking into consideration the averments made by the second respondent, in paragraph-4 of the additional counter affidavit filed on 20.2.2012.The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed.