(M.R. Shah and Aniruddha Bose, JJ.)
Civil Appeal No. 5152 of 2021 (Arising out of SLP (C) No. 800/2021), decided on September 6, 2021
Raju Laxman Pachhapure ____________________________ Appellant;
v.
Commissioner of Central GST and Another __________ Respondent(s).
With
Conmt.Pet.(C) No. 367/2021
In
SLP(C) No. 800/2021
Civil Appeal No. 5152 of 2021 (Arising out of SLP (C) No. 800/2021); Conmt.Pet.(C) No. 367/2021; and SLP(C) No. 800/2021
The Order of the court was delivered by
Order
1. Leave granted.
2. Heard Mr. Anand Sanjay M. Nuli, learned counsel appearing for the appellant and Mr. N. Venkataraman, learned ASG appearing for the respondents.
3. Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the High Court dated 08.12.2020 passed by the High Court of Judicature at Bombay in Writ Petition No. 2539/2020 by which the High Court has dismissed the said Writ Petition relegating the appellant herein to avail the alternative remedy of appeal against the order in original dated 21.08.2013, the original Writ Petitioner has preferred the present appeal.
4. From the prayer in the Writ Petition, it appears and does not seem to be disputed that, in the original Writ Petition, the petitioner also rightly or wrongly challenged the vires of Rule 17(2) of the Pan Masala Rules as ultra vires to the provisions of Section 3A of the Central Excise Act.
5. It is true that, in para 14, the High Court has observed that, in the facts of the case, challenge to the vires of Rule 17(2) of the Pan Masala Rules is rather without substance, however, the High Court has not at all addressed the issue on vires on merits in detail. The question of vires cannot be decided by the Appellate Authority/Tribunal in an appeal against the order in original.
6. Under the circumstances and it is only on the aforesaid ground alone and the High Court has not at all addressed on merits on the question with respect to vires of Rule 17(2) of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, we set aside the impugned order passed by the High Court and remand the matter to the High Court for its fresh decision. However, it is to be noted that, while issuing notice in the present Special Leave Petition/Appeal, vide order dated 01.02.2021, there was a stay on penalty only. The aforesaid interim order of stay on penalty shall be continued till the High Court takes up the matter for further hearing on remand. It is clarified that there shall not be any stay on recovery of duty and interest. It will be open for the Department to proceed further with the recovery of the duty and interest in accordance with law.
7. With this, the present appeal stands disposed of.
8. Consequently, Contempt Petition also stands dismissed/disposed of. Pending applications also stand disposed of.
Petition(s) for Special Leave to Appeal (C) No(s). 800/2021
Raju Laxman Pachhapure _____________________________ Petitioner
v.
The Commissioner of Central GST & Anr ____________ Respondent(s)
IA No. 4641/2021 – EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT
IA No. 6185/2021 – PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES
IA No. 4639/2021 – PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)
WITH
CONMT. PET.(C) No. 367/2021 in SLP(C) No. 800/2021 (IX)
Date : 06-09-2021 These matters were called on for hearing today.
(Before M.R. Shah and Aniruddha Bose, JJ.)
For Petitioner(s) Mr. Anand Sanjay M. Nuli, Adv.
Mr. Suraj Kaushik, Adv.
Mr. Agam Sharma, Adv.
Mr. Dharm Singh, Adv. for M/s. Nuli & Nuli, AOR
For Respondent(s) Mr. N. Venkatraman, ASG
Mr. Akshay Amritanshu, Adv.
Mr. Shekhar Vyas, Adv.
Mr. Manish, Adv.
Mr. Sarthak Raizada, Adv
Mr. Mukesh Kumar Maroria, AOR
Mr. Siddhartha Barua, Adv.
Mr. Praful Jindal, Adv.
Ms. Jasmine Damkewala, AOR
Ms. Vaishali Sharma, Adv.
Mr. Dinesh Chander Trehan, Adv.
UPON hearing the counsel the Court made the following
ORDER
9. Leave granted.
10. The present Appeal stands disposed of and Contempt Petition also stands dismissed/disposed of in terms of the signed order.
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