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Judgment
By this Writ Petition under Article 226 of the Constitution of India, the petitioners are seeking issuance of a Writ of certiorari or a writ, order or direction in nature thereof calling for the records pertaining to the letters/notices of the respondents dated 7th April, 2014 Annexure-D and 24th September, 2015 Annexure-I and those issued to the customers of petitioner No. 1 seeking a refund of Cenvat credit and/or denying Cenvat credit Annexure-F to Annexures-F-1 to F-5. It is submitted that these be scrutinized for their legality and validity and thereafter be quashed and set aside.
The petitioner''s senior counsel Mr. Dwarkadas, on the earlier occasion and even today, raised several contentions the principal being that each of these actions are arbitrary, unconstitutional and unsustainable in law. It is the petitioner''s submission that the Notification dated 28th February, 2014, has been interpreted erroneously and thereby the petitioner is forced to obtain a fresh or additional registration as importer of excisable goods when the same is not at all required as the petitioner holds a general and omnibus registration as a dealer. Therefore, the specific registration as importer must give way to the general registration as a dealer.
Mr. Dwarkadas has relied upon the Cenvat Credit Rules, 2004, and particularly Rule 9(1) and its amendment by the subject Notification.
Mr. Dwarkadas would submit that though this Court recorded the statement of Mr. Jetly on the earlier occasion that no reversal of credit would take place unless a show cause notice is issued to all the parties whose names are mentioned in the list attached to the communication at Page 59 and equally to the petitioners, by the affidavit that is filed in reply, the Assistant Commissioner purports to conclude the issue. He has clarified the stand of the respondents and on a plain reading of the paragraphs to which our attention is invited by Mr. Dwarkadas, namely, at Pages 71 and 72 of the paper-book, it is submitted that this inconsistent and contrary or contradictory position would denote as to how the outcome of the proceedings would be now that the adjudication is going to be a formality and as the conclusion is already reached and recorded by this affidavit.
These and the other contentions were raised and we specifically enquired from Mr. Jetly as to why the affidavit is silent on what these statements on the earlier occasion were made and duly recorded by the Court. In all fairness Mr. Jetly, on further instructions, states that despite the affidavit being filed, the petitioners and other would be served show cause notices, they would be given a personal hearing and order will be passed assigning reasons. Until all this is done, there is no apprehension of any coercive measures being initiated to recover the sums or amounts, either from the petitioners or those to whom the benefit is sought to be passed on by the petitioners. Hence, any affidavit being filed or any interpretation being placed on the Rule by the respondents will not influence the outcome of the proceedings. The orders of adjudication would be passed on their own merits and in accordance with law, uninfluenced by any position which is stated on affidavit.
After we have given anxious consideration to these submissions and perused the relevant papers and annexures, we are of the opinion that the petition need not be kept pending. It is apparent that the Cenvat Credit Rules, 2004 and the Rule to which our attention has been invited are still there in place. The Notification which purports to amend sub-rule (1) and seeks to enforce a condition of dual registration would have to be interpreted, but any prejudging the issue by us is unnecessary and at this stage. Once Mr. Jetly has clarified that the petitioners would be free to place their interpretation of the Rule and equally that no dual registration is contemplated by law and that a general registration would give way to any insistence on a special registration as a importer, then, all the more we need not interfere in writ jurisdiction at this stage. Once the petitioners would be served with a show cause notice so also others and none of them would be prejudiced in any manner because of any affidavit being filed in reply to the petition or any position or stand being taken therein, then, all the more by accepting the statements of Mr. Jetly we can dispose of this Writ Petition. It would be fair that once not only the petitioners and others are proceeded against them in their absence and they being not before us, none should be prejudiced by any interpretation or stand taken by the respondents and placed before this Court.
We, therefore, direct that until and unless the show cause notices are served and they are adjudicated in accordance with law, no coercive measures shall be initiated by the respondents and to recover any sums from the petitioners or those others whom the respondents intend to proceed against. Similarly, at any adjudication that may take place in pursuance of any show cause notice none of the parties, including the petitioners shall be precluded from raising all contentions, including based on the grounds raised in this Writ Petition and the Adjudicating Officer shall pass a speaking order, without being influenced by any statements made in this affidavit in reply. All contentions of all the parties on the merits of the controversy are kept open.
The Writ Petition is disposed of. We clarify that this Court has not expressed any opinion on the rival contentions.