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Judgment
By way of this writ petition, the petitioner has questioned the legality and validity of the demand notice dated 8-10-2013 (Annex. 1), as issued by the Superintendent, Central Excise & Service Tax, Range-I, Gandhi Nagar, Bhilwara whereby, the petitioner has been called upon to deposit the Service Tax amounting to Rs. 15,78,40,282/- with interest and penalty imposed in the sum of Rs. 17,08,00,086/- under the Order-in-Original No. 40-41/2012/ST/JPR-II/4060, dated 26-10-2012. It is submitted that the appeal bearing No. ST/55668/2013 alongwith Stay Application No. ST/55900/2013, has been filed by the petitioner-assessee before the CESTAT on 7-2-2013 and the matter was listed on several dates before the CESTAT but got adjourned either due to non-availability of the Bench or for not reaching.
It is submitted that the impugned demand notice has been issued essentially with reference to the Circular No. 967/01/2013-CX , dated 1-1-2013 although the said Circular has already been declared non est by this Court; and the coercive recovery proceedings pursuant to impugned Circular have been prohibited while directing the respondents to ensure hearing of the appeals and interim applications of the earliest. The decision of a Co-ordinate Bench in DBCWP No. 1891/2013 : Manglam Cement Limited Vs. The Superintendent, Central Excise and Others, has been referred.
Having heard the learned counsel for the petitioner and having perused the material placed on record we are rather dismayed that despite a considered decision of this Court holding the questioned Circular as non est, the respondent-Superintendent, with impunity has chosen to issue such a demand notice with reference to the very same Circular.
As regards the questioned Circular No. 967/01/2013-CX, dated 1-1-2013, it remains indisputable that so far this Court is concerned, a final view has been taken in the order dated 1-3-2013 passed at the Jaipur Bench of this Court in a batch of petitions led by DBCWP No. 1891/2013 : Manglam Cement Ltd. v. The Superintendent Central Excise Range-IH, Kota & Ors. In the said order dated 1-3-2013, this Court has found the impugned Circular, obligating the concerned authorities to initiate recovery proceedings on the expiry of period as mentioned therein non est insofar it relates to the situation where the appeals with stay applications had been filed but no stay could be granted and the stay applications remained pending for the reasons not attributable to the assessees in any manner. This Court has ultimately observed, held and directed as under:
In the wake of the above, we hold that the impugned circular dated 1-1-2013 obligating the concerned authorities to initiate recovery proceedings on the expiry of period as mentioned therein so far as it relates to the situations where appeals with stay applications have been filed, but no stay had been granted and the stay applications had been kept pending for reasons not attributable in any manner whatsoever to the petitioners/assessees and resultantly, no interim relief had been granted is non est. Consequently, no coercive steps for the recovery of the demands vis-�-vis such petitioners would be initiated. Instead, the respondents would ensure that such appeals and interim applications are heard as contemplated by the Act at the earliest and preferably within a period of three weeks herefrom. The petitioners would unfailingly cooperate with the forums to meet the time frame fixed. It is made clear that the Court has not offered its comment on the merits of the appeals and/or interim applications filed and that the concerned forums would take appropriate decisions thereon without in any manner influenced by this determination.
The petitions are thus allowed to the extent as indicated hereinabove. No costs. A copy of this order be placed in all the files.
Following the aforesaid order dated 1-3-2013, a Coordinate Bench of this Court further passed the following order on 15-4-2013 in DBCWP No. 3776/2013:--
Heard Mr. Rajvendra Saraswat, learned counsel for the petitioner.
In challenge is the Circular No. 967/01/2013-CX, dated 1-3-2013.
A coordinate bench of this Court vide judgment dated 1-3-2013 in a batch of writ petitions, the lead case being D.B. Civil Writ Petition No. 1891/2013 (Mangalam Cement Ltd. v. The Superintendent, Central Excise Range-III, Kota & Ors.) has interfered with the circular to the extent as indicated therein.
Having regard to the identicalness of the challenge made in the instant writ petition, we deem it expedient to close this matter by giving liberty to the petitioner to lay before the authority concerned a copy of the judgment and order dated 1-3-2013 for the needful.
The stay application also stands disposed of.
With the legal position having been concluded by the Court more than 7 months back and in no uncertain terms, this Court having pronounced the Circular in question "non est" insofar relating to the situation where the stay applications remain pending in the appellate fora, it sounds rather strange that the concerned Superintendent Central Excise has at all chosen to issue the questioned notice on the basis of the same Circular.
Prima facie the notice (Annex. 1) is of a show of total disrespect to and defiance of the order passed by this Court. The order passed by this Court on 1-3-2013, both in its letter as also in its spirit, leaves nothing to doubt or guess that this Court has pronounced the impugned Circular dated 1-1-2013 non est in relation to the situation as obtaining in the present case. Any attempt to yet initiate the coercive proceedings on the basis of the this very Circular gives rise to serious questions on the approach and intentions of the respondents.
Having regard to the circumstances, we feel impelled that even while admitting this writ petition and staying operation of the impugned order, a notice be issued to the Superintendent, Central Excise & Service Tax, Range-I, Gandhi Nagar, Bhilwara to show cause as to why the proceedings for having committed contempt of the order of this Court dated 1-3-2013 as passed in DBCWP No. 1891/2013 be not initiated.
In view of the above this writ petition is admitted for hearing. Notices be issued to the respondents. Notices of the stay application be also issued.
In the meanwhile and until further orders, operation and effect of the impugned order dated 8-10-2013 (Annex. I) shall remain stayed. The name of the present incumbent of the office of the respondent No. 1 i.e., the Superintendent, Central Excise & Service Tax, Range-I, Gandhi Na-gar, Bhilwara shall be supplied by the petitioner within 3 days from today. A separate suo motu contempt petition be registered with a copy of this order as also a copy of the impugned order (Annex. 1). Therein, a notice shall be issued to the incumbent of the office of the respondent No. 1 i.e., the Superintendent, Central Excise & Service Tax, Range-I, Gandhi Nagar, Bhilwara to show cause as to why contempt proceedings be not initiated against him for deliberate defiance of the order dated 1-3-2013 passed by this Court in DBCWP No. 1891/2013 : Mangalam Cement Ltd. v. The Superintendent Central Excise Range-III, Kota & Ors.