B. Engineers and Builders Ltd. Vs. Asst. Commissioner, Central Excise and Customs and Service Tax and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 3. because of such failure of opposite party no. (supra) has clearly stated in paragraphs 28 to 31 of the judgment overruling the decision of this court.1. heard further argument. hearing is concluded & the judgment is as follows.2. petitioner challenges the demand of rs. 5,15,079 (rupees five lakh fifteen thousand seventy nine) towards duty & rs. 50,000 (rupees fifty thousand) towards penalty as per letter dated 29.03.2006 issued from the office of the superintendent, central excise customs & s. tax, range-i, bomikhar, bhubaneswar, representation of the petitioner & rejection thereof as per letter dated 16.09.2007. all such documents are part of the record in annexure-2 series from pages 18 to 22 of the brief.3. learned counsel for the petitioner states that opposite arty no. 4 was liable to pay that tax. opposite party no. 4 had taken the loan from orissa state financial corporation (in short 'osfc') for creating the establishment/business, but defaulted to clear up the arrear loan dues of the opposite party no. 3. because of such failure of opposite party no. 4, opposite party no. 3, in exercise of the authority under section 29 of the state financial corporation act, 1951, not only seized & took over possession of the disputed premises but also sold it in public auction made in the high court's premises. it was stipulated that the purchaser in auction is free from all encumbrances. accordingly he states that the liability of opposite party no. 4 saddled on the petitioner on the flimsy ground of successors-in-interest is not sustainable. in support of that contention petitioner relies on the case of union of india and ors. v. sicom ltd. and anr. : 2009 (1) scale 10, & the judgment in civil appeal no. 3481 of 2002 of the apex court in the case of m/s. suburban ply & panel pvt. ltd. v. assistant commissioner, central excise & customs, bhubaneswar division and ors. 2002 (1) olr 558. the certified copy of the order of the apex court dated 12.02.2009 has been filed today in addition to xerox copy filed earlier. petitioner also files a xerox copy of the judgment in the case of mascon marbles pvt. ltd. v. union of india : 2003 (158) e.l.t. 424 (s.c.), in support of his contention that the ration propounded therein is no more available. he also files the xerox copy of the judgment of the division bench of this court in the case of m/s. suburban ply (supra) to indicate that the civil appeal was allowed setting aside that judgment & that similar facts situation were involved in that case too. accordingly he advances the argument.4. mr. patnaik, learned counsel for the central excise department while conceding to the ratio about crown debt not superseding the statutory dues however tries to make a distinction relating to the right of the central excise department to collect arrear taxes of opposite party no. 4 in accordance with rule 230 (2), which is under possession of the petitioner. we find no merit in the submission made to distinguish the decision, because the judgment in sicom ltd. (supra) has clearly stated in paragraphs 28 to 31 of the judgment overruling the decision of this court. the same legal consequence has been reiterated by the apex court in the above noted civil appeal no. 3481 of 2002 by stating that-having gone through the judgment of the division bench of this court in the case of union of india and ors. v. sicom ltd. and anr. reported in : 2009 (1) scale 10, we are of the view that the issue involved in these civil appeals is squarely covered by the said decision. accordingly, the civil appeals stand allowed with no order as to costs.in view of such decision, the demand made in annexure-2 series is not sustainable & accordingly quashed, & the writ petition is accordingly allowed. no cost.