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Judgment
K. Mohan Ram, J.—By consent of learned Counsel on either side the writ petition itself is taken up for final disposal.
The above writ petition has been filed for the issuance of a Writ of Certiorarified Mandamus calling for the records relating to the order C.No.
IV/16-2-2003-CE X.P01, dated 30-6-2004, passed by the third respondent, quash the same and consequently direct the respondents to issue
necessary certificates to the petitioner to procure LSHS as per the exemption granted under Notification No. 6 of 2003 dated 2-3-2003.
Though several grounds have been raised in the writ petition and lengthy arguments were advanced on either side in the light of the view I am
taking in this matter those submissions and contentions are not being considered,
In the above writ petition the order passed by the third respondent in C.No. IV/16-2-2003-CE X.P01 dated 30-6-2004 is challenged. In
paragraph 22 of the affidavit filed in support of the above writ petition it is stated as follows:
Aggrieved by the said order of the third respondent dated 30-6-2004, the petitioner filed an appeal before Commissioner of Central Excise
[Appeals], Chennai (the Appellate Authority). The Appellate Authority remanded the matter for fresh adjudication vide order-in-appeal dated 14-
9-2004 holding that the order of third respondent is arbitrary and in violation of the principles of natural justice, The remand proceeding is pending
with the third respondent. So far no action has been taken by the third respondent either to hear the matter or to allow the petitioner to procure
LSHS.
In paragraph 26 of the affidavit it is stated as follows:
Hence, as against the orders of the third respondent, the petitioner having been left with no other alternative efficacious remedy, is constrained
to approach this Hon''ble Court invoking its extraordinary jurisdiction under Article 226 of the Constitution of India.
In paragraph 28 it is stated as follows:
Unless the order passed by the third respondent is stayed by this Hon''ble Court and the petitioner is permitted to continue to avail the benefit
of Notification 6/2003-CE, the petitioner''s rights would be seriously prejudiced.
In the counter affidavit filed by the respondents in paragraph 12 it is stated as follows:
The present writ petition has been filed challenging the proceedings of the Deputy Commissioner of Central Excise dated 30-6-2004 which is
no longer in force consequent to the orders passed by the Commissioner of Central Excise, Pondy in C.No.V/Ch.27/15/20/2003 CX Ad. Dr.. 5-
10-2004. That apart as against the orders passed by the Commissioner of Central Excise, dated 5-10-2004, an appeal has been preferred by the
petitioner before the Customs Excise and Service Tax Appellate Tribunal (CESTATJ which is still pending. While that be so, when an order had
been passed by the second respondent which has not been challenged by the petitioner filing of this writ petition against the order passed by the
third respondent dated 30-6-2004 which has not been pursued thereafter would amount to abuse of process of court and the writ petition is liable
to be dismissed with exemplary costs.
Mr. G. Sankaran, learned Standing Counsel submitted that the filing of the above writ petition against a non-existent order amounts to clear
abuse of process of this Court. He further submitted that the above writ petition itself has been filed only for the purpose of getting an interim
direction to get the certificates for procurement of LSHS and to avail the exemption under Notification No. 6 of 2003 dated 1-3-2003 and further
submitted that admittedly two appeals filed by the petitioner are pending before CESTAT and appropriate directions could have been obtained by
the petitioner if the petitioner is really entitled to claim exemption under the said notification. The learned standing counsel further submitted that
against the order dated 14-9-2004 passed by the Commissioner of Central Excise (Appeals) Chennai setting aside and order dated 30-6-2004
(order impugned in this writ petition), the petitioner has not filed any further appeal and admittedly the matter is pending before the third respondent
herein and as such the above writ petition is not maintainable and liable to be dismissed with exemplary cost.
The learned Counsel for the petitioner tried to justify the filing of the above writ petition by submitting that so far no action has been taken by the
third respondent either to hear the matter after remand or to allow the petitioner to procure LSHS. It is nowhere stated in the affidavit as to what
steps the petitioner took to expedite the hearing of the matter by the third respondent after remand and to get the certificates for procuring LSHS.
Even assuming that there was inaction on the part of the third respondent that cannot be a ground for filing the writ petition against a non-existent
order. As rightly submitted by the'' learned standing counsel the above writ petition has been filed solely for the purpose of getting an interim
direction by abusing the process of this Court. Such conduct on the part of the petitioner has to be viewed seriously and no leniency should be
shown in these matters.
As stated above, the petitioner in his affidavit has stated that against the impugned proceedings the petitioner has no other alternative efficacious
remedy which contradicts the petitioner''s own averment in paragraph 22, wherein it is stated that the appeal filed by the petitioner against the
impugned proceedings was allowed and the matter was remanded back to the third respondent. The petitioner had not only obtained the order of
interim stay of a non-existing order, but also obtained an interim direction and the interim direction also had been given effect to by the
respondents. By abiding the process of this Court the petitioner has availed the benefit of interim direction to procure LSHS without payment of
duty. What the petitioner could not get directly has been got indirectly by abusing the process of this Court.
Therefore, for the foregoing reasons, the above writ petition is dismissed with the exemplary costs of Rs. 25,000/- (Rupees Twenty-five
Thousand only). The petitioner shall deposit the cost of Rs. 25,000/- to ""The Chief Justice Relief Fund"" within a period of two weeks from the date
of receipt of a copy of this order. As the petitioner has availed the benefit of the order of interim direction without payment of duty, in view of the
dismissal of the above writ petition, it is open to the respondents to proceed against the petitioner in accordance with law subject to the orders, if
any, passed by the CESTAT in the appeals filed by the petitioner. Consequently the connected WPMPs and WYMP are closed.