Dynamatic Technologies Ltd. Vs. Union of India (Uoi)

Dynamatic Technologies Ltd. vs Union of India (Uoi)

Type Court Judgment Court Karnataka Decided Jun 20, 2005

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https://sooperkanoon.com/case/383040

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Citation: sooperkanoon.com/383040
Court: Karnataka High Court
Judge: D.V. Shylendra Kumar, J.
Decided On: Jun 20, 2005
Case Number: Writ Petition No. 43211 of 2004
Subject: Civil;Excise

Case Summary

AI-generated summary - not the official court judgment text.

- Clause 2.2(b): [Dr. K. Bhakthavatsala, J] Benefit under the Scheme Petitioners request for grant of pension under the scheme was rejected - Non-fulfilment of the eligibility criteria by the petitioner- Held, Since the petitioner has not fulfilled the required conditions as per the Swatantra Sainik Sanman Pension...

Key legal issue: Civil;Excise
Acts & sections: Central Excise Act, 1944 - Sections 11A

Parties & Advocates

Appellant / Petitioner

Dynamatic Technologies Ltd.

Advocate Raghuraman and ;Chythanya, Advs.

Respondent

Union of India (Uoi)

Advocate R. Veerendra Sharma, ACGSC, ;Devhadoss, ASG and ;Arvind Kumar, ACGSC

Legal References

Acts: Central Excise Act, 1944 - Sections 11A
Reported In: 2005(186)ELT277(Kar)

Excerpt

- clause 2.2(b): [dr. k. bhakthavatsala, j] benefit under the scheme petitioners request for grant of pension under the scheme was rejected - non-fulfilment of the eligibility criteria by the petitioner- held, since the petitioner has not fulfilled the required conditions as per the swatantra sainik sanman pension scheme, specifically clause 2.2(b) of the swatantra sainik sanman pension scheme, the petitioner is not entitled for the pension. merely because he has been granted pension under the state scheme, is not ipso facto entitled to central pension under the swatantra sainik sanman pension scheme. in short, the petitioner does not fulfil the requisite conditions so as to seek central pension under the swatantra sainik sanman pension scheme. on facts, held, according to the petitioner, he was detained at srirangapatnam jail on account of his participation in the freedom movement from 25.10.1942 to 30.4.1943. but the petitioner has not produced the acceptable evidence before the authorities concerned to claim the pension under the swatantra sainik sanman pension scheme. hence, rejection of application of the petitioner is justified. .....has already been refunded and to ensure that any hassle of a plea of limitation is not encountered at that time, the notice has been issued etc.5. however, after the matter was argued and it was pointed out that in a situation of this nature i.e. the refund being only as a consequence of an order/direction issued by the appellate authority, as a quasi-judicial functionary, any recovery of amount can only be if the order is again modified further in the appeal proceedings and not otherwise and even in such an event, the amount can be recovered as a consequential action and not independently, respondents have realized the futility in issuing such a notice, the show cause notice being wholly unnecessary and also not one within the scope of the power under section 11a of the act.6. the respondents having realized this position, have now filed a memo through their standing counsel today, inter alia indicating that the department is now taking steps to withdraw the notice. the memo is received on record.7. sri raghuraman, learned counsel for the petitioner submits that as the department itself is withdrawing the notice, nothing survives in this writ petition.8. in the result, this writ petition is disposed of, as having become unnecessary in the light of the undertaking given in the memo indicating that the department itself is withdrawing the show cause notice. ordered accordingly. the respondents should take such action within a period of eight weeks from today.

Full Judgment

ORDER

D.V. Shylendra Kumar, J.

1. Writ petition challenging a notice issued under Section 11A of the Central Excise Act, 1944 [for short, the Act], proposing recovery of certain amount for the reason that it had been erroneously refunded to the petitioner.

2. The petitioner has approached this Court questioning the legality of such a notice on the premise that the refund itself has been given to the petitioner in terms of the directions issued by the Appellate Commissioner in an appeal preferred by the petitioner and as a sequel to the order-in-appeal.

3. Notice had been issued to the respondents. Respondents have entered appearance through Sri Veerendra Sharma, learned Central Government Standing Counsel.

4. Though the department initially wanted to assert that the notice has been issued only by way of protective measure and that in the event of the department succeeding in their appeal before the Tribunal, preferred against the order passed by the Appellate Commissioner, when the department will have to recover the amount that has already been refunded and to ensure that any hassle of a plea of limitation is not encountered at that time, the notice has been issued etc.

5. However, after the matter was argued and it was pointed out that in a situation of this nature i.e. the refund being only as a consequence of an order/direction issued by the Appellate Authority, as a quasi-judicial functionary, any recovery of amount can only be if the order is again modified further in the appeal proceedings and not otherwise and even in such an event, the amount can be recovered as a consequential action and not independently, respondents have realized the futility in issuing such a notice, the show cause notice being wholly unnecessary and also not one within the scope of the power under Section 11A of the Act.

6. The respondents having realized this position, have now filed a memo through their Standing Counsel today, inter alia indicating that the department is now taking steps to withdraw the notice. The memo is received on record.

7. Sri Raghuraman, learned Counsel for the petitioner submits that as the department itself is withdrawing the notice, nothing survives in this writ petition.

8. In the result, this writ petition is disposed of, as having become unnecessary in the light of the undertaking given in the memo indicating that the department itself is withdrawing the show cause notice. Ordered accordingly. The respondents should take such action within a period of eight weeks from today.

Same Court & Year Karnataka · 2005 Same Parties Dynamatic Technologies Ltd. vs Union of India (Uoi) Same Subject Civil;Excise Same Judge D.V. Shylendra Kumar, J. Acts & Sections Central Excise Act, 1944 - Sections 11A

Civil;Excise