COMMON ORDER
1. The orders of the respondent, calling upon the petitioner, to make payment of the dues, and appropriating the sanctioned amount of rebate towards the outstanding arrears, are under challenge in these Writ Petitions.
2. Since all these Writ Petitions involve a common issue, they are being disposed of in common. For the sake of disposal, let me take the facts in W.P.No.13516 of 2011.
(i) M/s.Madura Coats Pvt. Ltd., Madurai, the petitioner herein is the holder of Central Excise Registration No.AABCM8279KXM005 and is inter alia engaged in the manufacture of cotton yarn, core spun yarn and 100% SSP (Staple Spun Polyester) multiple folded yarn falling under Chapters 52, 54, 55, respectively of the First Schedule to the Central Excise Tariff Act, 1985. It is also a Star Trading House and has paid crores in tax to the Government.
(ii) There were disputes between the petitioner and the respondent in respect of dipped man made fabrics falling under Chapter 59 of the Central Excise Tariff Act, 1985. This was related to the demand of Rs.1,12,87,214.26, demanded by the Assistant Commissioner of Central Excise, Madurai and confirmed in appeal by the Commissioner of Appeals in his Order in Appeal No.115/2008. Against the said order of Appeal, the petitioner filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (in short 'CESTAT') in E/141/09, which is pending and stood posted for hearing on 16.02.2012. There was also a further demand for a sum of Rs.4,61,679/- by the Assistant Commissioner of Central Excise and confirmed in Appeal by the Commissioner of Central Excise (Appeals), Madurai in Order in Appeal No.209-210/2009. Against the said order, the petitioner filed an Appeal before the CESTAT in E/559/09.
(iii) In respect of Appeal No.E/141/2009, the petitioner moved an application for waiver of pre-deposit in the light of the fact that he has already paid a sum of Rs.43,00,000/- on account to the Department way back in 1991 and noting that the interest generated over the years would definitely be in excess of the duty demanded, the Tribunal stayed the recovery of the demand vide stay order No.306/2009 and Misc. Order No.179/2009 dated 20.04.2009. The petitioner's request for an early hearing of the appeal was allowed and the appeal was fixed for final hearing on 11.06.2009. Though the matter had been listed on the said date, it was not taken up for want of time. (iv) Similarly, in respect of the demand for Rs.4,61,679/-, the petitioner filed Appeal No.E/559/2009 seeking waiver of pre-deposit under Section 35F of the Central Excise Act, 1985. By stay order No.31/10 dated 18.01.2010, the Tribunal was pleased to accept the petitioner's contention that it had effected payment of Rs.2,61,340/- out of the total duty demand of Rs.4,61,679/- and grant waiver of pre-deposit and stay. Though these stay orders had not been vacated and the appeals not taken up for hearing in June 2009, the Superintendent of Central Excise, City range, Madurai-II Division vide his communication bearing Ref.O.C.No.439/2010 dated 27.08.2010 called upon the petitioner to pay the duty demanded as the stay order had not been extended after the expiry of six months from the date of the order, which is, by virtue of the second proviso to Section 35C(2A) of the Central Excise Act, 1944, as reproduced below :
Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated.
(v) In view of the above, the petitioner was constrained to move the CESTAT once again in Miscellaneous Petitions in the two Appeals and by an order dated 20.09.2010, the Tribunal in Misc. Order Nos.427 and 428 of 2010 granted extension of stay for a further period of six months. Again, on 05.04.2011, the Superintendent of Central Excise, City Range, Madurai-II issued a letter to the petitioner asking him to obtain extension of interim order or pay the demanded duty. Once again, the petitioner was constrained to move the Tribunal on 15.04.2011, however, due to reasons beyond his control, the application was not taken up for hearing. In the meantime, the petitioner became eligible for rebates from the Department pursuant to rebate claims made by it under Rule 18 of the Central Excise Rules, 2002 r/w notification No.41/2001, which rebate claims had nothing to do with the petitioner's dispute before the CESTAT. However, Rs.24,45,167/- which became due to the petitioner by virtue of six orders in original, namely, OIO 45-50 of 2011 issued in the first week of May 2011 on rebate claims made by the petitioner, was appropriated by the respondent towards what he termed the 'outstanding arrears of the petitioner' which is the subject matter of the Appeal No.E/141/2009.
(vi) Soon thereafter, the petitioner obtained extension of interim order from the Tribunal on 09.05.2011. Armed with the said order, the petitioner approached the respondent to release the appropriated amount of Rs.24,45,167/- on 10.05.2011 and 13.05.2011 without success. The petitioner had also taken out a Miscellaneous Application No.213 of 2011 before the CESTAT seeking refund of the appropriated amount to the petitioner and the petitioner also filed additional written submissions in this regard on 20.05.2011. However, no orders were passed in these Applications and the main appeals as well as the Miscellaneous Applications filed for refund were posted for hearing on 26.05.2011 in the top of the list, but were not taken up for hearing due to non- availability of the Bench.
(vii) Since the petitioner could not obtain orders from the Tribunal, he was constrained to file appeals before the Commissioner of Central Excise (Appeals) on 01.07.2011 against the six orders in original appropriating the sanctioned amount towards the demands which were the subject matter of the pending appeals. However, these appeals were finally heard by the Commissioner on 17.11.2011 and orders were yet to be passed in those appeals. In the meantime, the appeals filed by the petitioner viz. E/141/09 and E/559/2009 were listed before the Tribunal on 11.08.2011, 15.09.2011 and 13.10.2011, but were not taken up for non-availability of the Bench.
(viii) Though the Tribunal was not even in session by virtue of the non-availability of the Bench in November 2011, by way of abundant caution, the petitioner has filed applications before the Tribunal seeking extension of stay already granted on 09.05.2011, which were due to expire on 09.11.2011. But, these applications were also not taken up due to non-availability of the Bench. (ix) Apprehending that the authorities would once again threaten coercive action, the petitioner has also filed a letter on 04.11.2011 before the Superintendent of Central Excise, informing him of the filing of the applications before the Tribunal seeking extension of stay and explaining the failure to obtain extension due to reasons beyond its control. However, the Superintendent of Central Excise, vide his letter dated 08.11.2011 has written to the petitioner asking him to obtain an order of stay or pay the demanded sum. The petitioner responded to the said letter on 09.11.2011 asking the Superintendent of Central Excise to refrain from initiating any coercive measures to recover the demand till the disposal of the application for stay pending before the Tribunal. A copy of the same was marked to the respondent.
(x) However, the respondent, by his letter dated 09.11.2011 wrote to the petitioner that he has to produce a copy of either the Tribunal's final order in his favour or the Tribunal's order granting extension of stay within ten days of expiry of the stay period i.e., 19.11.2011 or make payment of the dues. The said letter reached the petitioner only on 18.11.2011 and the petitioner wrote to the respondent vide letter dated 19.11.2011 explaining that he was not in a position to produce the final order or the stay order within ten days and requested him not to take any action to recover the demand involved in the above appeals. However, the respondent paid no heed to these requests and payment of a sum of Rs.9,86,072/- which has been sanctioned to the petitioner towards rebate of duty claimed by him vide order in Original Nos.90 and 91/2011 dated 18.11.2011 was appropriated by the respondent towards the amounts, which are the subject matter of appeals before CESTAT. In order in Original No.90/2011, the respondent appropriated a sum of Rs.4,88,186/- and in Order in Original No.91/2011, the respondent appropriated a sum of Rs.4,97,886/-.
(xi) Though these rebate claims were filed by the petitioner in August 2011 and certified by the jurisdictional Superintendent for sanction in September 2011, the respondent refrained from sanctioning the same till November 2011 and thereafter proceeded to withhold payment of the sanctioned amount and appropriated the same towards the demands stayed by the CESTAT, only on the basis that the stay had not been extended beyond six months.
(xii) Having no other alternative except to approach this Court to restrain the respondent from making appropriation, the petitioner has filed this Writ Petition.
3. Respondent has filed a counter affidavit, stating as follows: 3.1. The petitioner M/s.Madura Coats Private Limited, holder of Central Excise Registration No.AABCM8279KM005, is engaged in the manufacture of yarn falling under the Chapters 52, 54 and 55 of the First Schedule to the Central Excise Tariff Act, 1985. They are clearing the said final products on payment of duty for export and claim rebate on the goods exported. In the check list for sanction of rebate claim, the RO has certified that a sum of Rs.69,87,214/- in connection with OIA No.115/2008 dated 30.11.2008 and Rs.9,23,358/- in OIA No.209-210/2009 dated 29.06.2009 is pending recovery. But, the assessee had gone on appeal with CESTAT and stay was granted and extended vide Misc. Order No.427/2010 and 428/2010 dated 20.09.2010 in the above two cases for six months or until the disposal of the appeals whichever was earlier. 3.2. M/s.MCPL have produced a copy of the Misc. Order No.220-221/2011 dated 09.05.2011 of CESTAT, South Zonal Bench at Chennai on 13.05.2011. The CESTAT has allowed the Misc. Applications filed by M/s.MCPL for extension of stay already granted vide Stay Order Nos.306/2009 and 31/2010 dated 20.04.2009 and 18.01.2010 respectively and granted extension by six months or until the disposal of the appeals whichever is earlier. The stay order granted by CESTAT has not been extended for further period and as per the terms of the order, the same stood vacated after expiry of six months period. As per the circular issued by the Central Board of Indirect Taxes, dated 26.05.2010, an opportunity was provided to the petitioner to seek extension of stay through the letter dated 09.11.2011. Since the petitioner could not produce any order for extension of stay, the respondent has passed separate orders for appropriating the rebate claims towards the payment of arrears. The said orders were passed by the respondent through Orders No.92/2011 dated 22.11.2011, No.93/2011 dated 23.11.2011, No.94/2011 dated 24.11.2011, No.95/2011 dated 24.11.2011. In the meanwhile, the petitioner filed a batch of Writ Petitions in W.P.(MD) No.13516 to 13518 of 2011 before this Court and as per the interim orders dated 25.11.2011 passed by this Court, the orders passed by the respondent were stayed. The telegram sent on behalf of the petitioner relating to passing of the interim order by this Court was received by the office of the Assistant Commissioner, Division No.I, only on 28.11.2011. Since the particulars regarding the sender were not clear, the petitioner was requested to provide a copy of the order referred in the telegram, as per the letter dated 29.11.2011 sent by the respondent.
3.3. The petitioner has filed another batch of Writ Petitions in W.P.(MD) Nos.13815 to 13818 of 2011 and got interim orders in their favour and as per the interim orders passed by this Court, the interim orders already granted by the CESTAT, Chennai have been extended for a further period with retrospective effect. The respondent has passed the impugned orders even prior to 25.11.2011 that too without knowing that interim orders were passed by this Court. After passing of the said orders, the dispatch section attached to the office of the Assistant Commissioner of Central Excise, Madurai I Division has dispatched the orders passed by the respondent apportioning the rebate claims to the party concerned without further reference to the respondent. The aforesaid facts would show that the orders referred to in the writ petitions were passed by the respondent without knowing that the interim orders granted by this Court are in favour of the petitioner and orders referred to in the Writ Petition were not passed by the respondent intentionally, after gaining the knowledge about the pendency of the writ petitions and the interim orders passed in favour of the petitioner.
3.4. The contention in the Writ Petitions is untenable inasmuch as the refund for rebate claims can be sanctioned by the authority within three months from the date of filing and the respondent has kept the claim pending only with a view to adjust the same towards the pending arrears and the said contention of the petitioner is not supported by any evidence.
3.5. In the above cases, the appropriation orders were issued by the Assistant Commissioner through a Speaking order and the statute provides for remedial measures only through the Appellate forum. After passing of such orders, the respondent is not vested with powers to review his own orders. Hence, the amount appropriated by him cannot be refunded unless otherwise ordered by Appellate forums or Court. Accordingly, he prayed for dismissal of the Writ Petitions.
4. The only contention of the learned counsel for the petitioner is that the action of the respondent in appropriating the amounts due to the petitioner towards outstanding arrears and making further demand for payment of dues, which is the subject matter of appeals before CESTAT, Chennai, is arbitrary and illegal. In support of his case, he has relied on the following decisions :
(i) 2005 (180) E.L.T. 434 (S.C.), Commissioner of Customs & Central Excise, Ahmedabad vs. Kumar Cotton Mills Pvt. Ltd. :
5. During the pendency of the appeal before this court, the matter was referred to a Larger Bench of the Tribunal. The Larger Bench has by its decision reported in 2004 (169) ELT 267 upheld the view impugned in this case. The decision of the Larger Bench has not been challenged by the Department being of the view that repeated special leave petition raising the same issue was unnecessary.
6. The sub-section which was introduced in terrorem cannot be construed as punishing the assessees for matters which may be completely beyond their control. For example, many of the Tribunals are not constituted and it is not possible for such Tribunals to dispose of matters. Occasionally by reason of other administrative exigencies for which the assessee cannot be held liable, the stay applications are not disposed within the time specified. The reasoning of the Tribunal expressed in the impugned order and as expressed in the Larger Bench matter, namely, IPCL vs. Commissioner of Central Excise, Vadodara (supra) cannot be faulted. However, we should not be understood as holding that any latitude is given to the Tribunal to extend the period of stay except on good cause and only if the Tribunal is satisfied that the matter could not be heard and disposed of by reason of the fault of the Tribunal for reasons not attributable to the assessee.
(ii) 2005 (182) E.L.T. 109, (Tri.-Mumbai), ISPAT Industries Ltd. vs. Commissioner of Central Excise, RAIGAD :
The action recovering disputed amount during the pendency of applications for extension of stay are clearly an abuse of Tribunal's process. The effect of such an action is to render the stay application/application for extension infructuous and orders passed therein. Rule 41 of CESTAT (Procedure) Rules, 1982 would clearly cover a case, of the present type, where the department takes impermissible and undue advantage of the inherent and unavoidable time gap that exists between the date when an application for extension of stay is filed and the time when the order for extension is ultimately received by both the parties. It so happened in this case when on 11.11.2004, the Bench itself was not sitting, therefore, the matter was adjourned and relisted on 07.12.2004. The fact that the matter had been adjourned was known to the representative of the department and it is therefore not open to the Commissioner and others in the department to claim ignorance of such fact. Such an action therefore would certainly be an abuse of this Tribunal's process. Undoing such wrongs with a view to prevent abuse of its process are an inherent process of this Tribunal. If such a view is not possible, then CESTAT would become a mute spectator to patently high handed, unjust, illegal, and unconstitutional action on the part of the respondents. Thus, the Commissioner is directed to return to the applicant the entire amount, which has been appropriated against sanctioned rebate claims without the authority of Law and in abuse of the powers.
(iii) 2011 (273) E.L.T. 3 (S.C.), Ranbaxy Laboratories Ltd. vs. Union of India :
Section 11BB of the Act comes into play only after an order for refund has been made under Section 11B of the Act. Section 11BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application. The explanation appearing below proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the Court, then for the purpose of this Section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. Manifestly, interest under section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under sub-section (1) of Section 11B of the Act and that the said explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable.
(iv) 2012 (275) E.L.T. 404 (Kar.), Commissioner of Central Excise, Banagalore - III vs. Stella Rubber Works (Unit-II) :
4. The learned counsel appearing for the revenue contended that by virtue of Section 11 of the Central Excise Act, 1944, the revenue was empowered to adjust the amounts due to the revenue by way of interest out of the amount due by the Department to the assessee by way of rebate. Therefore, the Tribunal committed a serious error in interfering with the said order of adjustment and therefore, he submits that the impugned order requires to be interfered with. ...
5. Per contra, learned counsel appearing for the respondent would contend that since the petitioner could not produce any order for extension of stay by the Tribunal against the orders of the Department, the respondent has passed separate orders for appropriating the rebate claims towards payment of arrears and further demanding payment of dues. He would cite the following authorities :
(i) AIR 1977 SC 898 = (1977) 1 SCC 1, Jai Singh vs. Union of India and others :
4. The High Court dismissed the writ petition on the ground that it involved determination of disputed questions of fact. It was also observed that the High Court should not in exercise of its extraordinary jurisdiction grant relief to the appellant when he had an alternative remedy. After hearing Mr Sobhagmal Jain on behalf of the appellant, we see no cogent ground to take a view different from that taken by the High Court. There cannot, in our opinion, be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact. It has also been brought to our notice that after the dismissal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject- matter of the writ petition. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time.
(ii) (2004) 7 SCC 166, S.J.S.Business Enterprises (P) Ltd. vs. State of Bihar and others :
14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 2265. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa6 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 327. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 2268. Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits.
(iii) (2007) 5 SCC 660, Ram Kumar Barnwal vs. Ram Lakhan (dead) : 11. To similar effect is the decision of this Court in Om Prakash Gupta v. Ranbir B. Goyal5. It was, inter alia, observed in that case as follows: (SCC pp. 262-64, paras 11-13)
11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders1 this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed.
12. Such subsequent event may be one purely of law or founded on facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan & Co. v. RM.N.N. Nagappa Chettiar6 this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao v. Sita Ram Kesho7 their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted.
13. Power of the court to take note of subsequent events, specially at the appellate stage, came up for the consideration of a Full Bench of the Nagpur High Court presided over by Sinha, J. (as His Lordship then was) in Chhote Khan v. Mohd. Obedalla Khan8. Hidayatullah, J. (as His Lordship then was) held, on a review of judicial opinion, that an action must be tried in all its stages on the cause of action as it existed at the commencement of an action. No doubt, courts 'can' and sometimes 'must' take notice of subsequent events, but that is done merely 'inter partes' to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right and title of the plaintiff. The doctrine itself is of an exceptional character only to be used in very special circumstances. It is all the more strictly applied in those cases where there is a judgment under appeal. His Lordship quoted the statement of law made by Sir Ashutosh Mookerjee, J. in a series of cases that merely because the plaintiff loses his title pendente lite is no reason for allowing his adversary to win if the corresponding right has not vested in the adversary but in a third party. In the case at hand, the defendant-appellant has simply stated the factum of proceedings initiated by HUDA against the plaintiff-respondent in an affidavit very casually filed by him. He has not even made a prayer to the court to take notice of such subsequent event and mould the relief accordingly, or to deny the relief to the plaintiff-respondent as allowed to him by the judgment under appeal, much less sought for an amendment of the pleadings. The subsequent event urged by the defendant-appellant is basically a factual event and cannot be taken cognizance of unless brought to the notice of the court in accordance with the established rules of procedure which if done would have afforded the plaintiff-respondent an opportunity of meeting the case now sought to be set up by the appellant. We do not think this Court would be justified in taking notice of a fact sought to be projected by the appellant in a very cavalier manner. The fact remains that the present one is a landlord-tenant dispute and we cannot upset the relief granted by the courts below and the High Court to the plaintiff-respondent by relying on the doctrine of eviction by title paramount as it cannot be said that the proceedings initiated by HUDA against the plaintiff-respondent have achieved a finality or are such proceedings wherein the plaintiff-respondent cannot possibly have any sustainable defence.
(iv) (2009) 10 SCC 425, Laxmidas Morarji (dead) by Lrs. vs. Behrose Darab Madan :
25. Article 142 being in the nature of a residuary power based on equitable principles, the Courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. This means that acting under Article 142, the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties.
(v) (2010) 13 SCC 733, Association of Synthetic Fibre Industries vs. Apollo Tyres Limited and others :
2. The statutory remedy of appeal under Section 9-C of the Customs Tariff Act, 1975 against the notification issued under Section 9-A(1) read with Rules 18 and 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 has been preferred. The Tribunal is already seized of the hearing. During the pendency of the appeal, any interference by the High Court in exercise of its writ jurisdiction was not called for as alternate efficacious remedy by way of appeal was available to the appellant.
(vi) (2011) 4 SCC 266, B.Premanand and others vs. Mohan Koikal and others :
4. We have carefully perused the judgments of the Full Bench and the learned Single Judge, and we regret we cannot agree with them. The Full Bench and the Single Judge have relied on equity, justice and good conscience, rather than law. We are of the opinion that this approach is incorrect. When there is a conflict between law and equity, it is the law which is to prevail. Equity can only supplement the law when there is a gap in it, but it cannot supplant the law. ...
(vii) 2011-TIOL-800-HC-AP-ST, Sri Chaitanya Educational Committee, Poranki Krishna District vs. Commissioner of Customs & Central Excise, Guntur & anr. Section 87 of the Act in plain terms empowers the Central Excise Officer to proceed to recover the amount of demand by one or more modes mentioned therein. Section 87(c) empowers the Central Excise Officer to distrain any movable and immovable property until the amount payable is paid. The power is not circumscribed by any condition. The condition precedent is that the amount of service tax levied remains payable when the power is exercised. The pendency of an appeal before the CESTAT or the Commissioner (Appeals) or before this Court does not in any manner whittle down the power under Section 87(c) of the Act.
6. I have heard the learned counsel for the parties and also gone through the records.
7. The issues involved in all these Writ Petitions as to the demand for making payment of the dues and the appropriation of sanctioned amount of rebate towards the outstanding arrears are disputed questions of facts, which cannot be gone into by this Court at this stage in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. Furthermore, aggrieved over the orders of the Department, the writ petitioner has already filed appeals before the Tribunal, namely, CESTAT, and the same are pending.
8. It may be true, the reason for filing these Writ Petitions is non-functioning of the Tribunal. Noting the said factor, this Court, on 25.11.2011, granted interim stay of the orders impugned till the constitution of Tribunal and the said order continues as on date.
9. The Supreme Court, in the case relied upon by the learned counsel for the respondent in Ram Kumar Barnwal, cited above, has held that the court has power to take note of the events and mould the relief subject to the conditions (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that the subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. It is also observed therein that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court, cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Apex Court affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned that (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed.
10. In the instant case, though the Tribunal was not even in session, by way of abundant caution, the petitioner has filed applications before the Tribunal seeking extension of stay already granted on 09.05.2011, which was due to expire on 09.11.2011, but, the said applications were not taken up due to non-availability of the Bench. Of course, on the expiry of stay, the respondent was empowered to act upon the impugned proceedings, but, at the same time, it was incumbent on his part to keep in mind the non-availability of the Tribunal and maintain status quo until further orders, but not to take advantage of the expiry of stay and no extension thereof, which were wholly due to non- availability of the quorum. Interestingly, the respondent, by an affidavit, dated 22.02.2012, has informed this Court that subsequent to receipt of telegram on 26.11.2011, the orders of this Court, dated 25.11.2011, have been strictly complied with and the subsequent rebate claims sanctioned and disbursed by way of cheques to the petitioner.
11. As this Court is not competent to decide the disputed questions of facts involved in these Writ Petitions and it is only the Tribunal, which is the appropriate forum to deal with the said questions and in seisin of the matters, the parties are directed to approach the Tribunal and put forth their contentions whenever the said Tribunal is constituted, for deciding the issues. It is made clear that the rebate claims disbursed to the petitioner are only by way of an interim measure and the same are subject to the outcome of the appeals before the Tribunal and that no coercive steps shall be taken by the respondent against the petitioner towards demands. The Tribunal shall decide the appeals on their own merits, untrammelled by any of the observations made in this order. It is needless to mention that until the appeals are taken up by the Tribunal, the interim stay, already granted by this Court on 25.11.2011, shall continue.
12. With the above observations and directions, these Writ Petitions are disposed of. No costs. Consequently, the connected M.Ps.are closed.