JINDAL SAW LTD vs UNION OF INDIA

C/SCA/735/2009 JUDGMENT DATED: 15/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 735 of 2009
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2012
In R/SPECIAL CIVIL APPLICATION NO. 735 of 2009

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-


and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-

==========================================================
Approved for Reporting Yes No
✔

==========================================================
JINDAL SAW LTD
Versus
UNION OF INDIA & ORS.
==========================================================
Appearance:
MR R SANTHANAM, SENIOR ADVOCATE WITH MR HARSHADRAY A
DAVE(3461) for the Petitioner(s) No. 1
ADVOCATE NOTICE SERVED for the Respondent(s) No. 2
MR DARSHAN M PARIKH(572) for the Respondent(s) No. 3
MS HETVI H SANCHETI(5618) for the Respondent(s) No. 1,3,4,5
==========================================================
CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

Date : 15/07/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present writ petition has been filed
seeking quashing and setting aside of the
impugned show-cause notice dated 17.09.2008
issued by the respondent No.3.
BRIEF FACTS:
2. The petitioner carries the business of
manufacturer and sale of steel pipes from 100%
Export Oriented Unit (EOU) and it has a steel
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pipe manufacturing unit and also steel pipe
coating unit located at Nanakapaya, Taluka
Mundra, District Kachchh. The steel pipes
manufactured, are classifiable under Central
Excise Tariff Heading 7305.90 and the pipes
manufactured qualify for central excise duty
exemption under notification No.39/2001-CE dated
31.07.2001, which was issued by the respondent
No.1 by the Ministry of Finance to rehabilitate
local population adversely affected by
devastating earthquake by accelerating process of
industrialization of the region to new industries
in the shortest possible time framed soon after
the earthquake in Gujarat in 2001. The petitioner
was one of the entrepreneurs, who had immediately
acted upon the appeals of the Central and State
Government to set-up the new industrial
undertaking at Nanakapaya. As per the
Notification and Eligibility as per the
notification dated 31.07.2001, the petitioner was
entitled to the benefit of central excise duty
exemption which was to be provided. The
petitioner was entitled for repayment/refund of
the central excise duty paid on finished
excisable goods manufactured and cleared on the
payment of duty of each month as per the said
notification.
3. It is the case of the petitioner that it
completed all requirements and fulfilled all the
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conditions and procedures and formalities
specified under the notification in respect of
clearances of finished excisable goods.
Accordingly, a certificate of eligibility for the
exemptions was issued by the High Powered
Committee (High Powered Committee) comprising the
Principal Secretary, Industries and Mines
Department of Government of Gujarat and Chief
Commissioner of Central Excise and Customs,
Ahmedabad, with a certificate dated 28.07.2003.
The said certificate was also forwarded to the
Commissioner of Customs and Central Excise,
Rajkot (respondent No.3) for giving effect to the
exemption.
4. The petitioner accordingly, informed the
competent authorities about the arrival of
imported capital goods for installation of plant
and machinery in its new unit, vide a letter
dated 07.07.2003. Such installation of plant and
machinery was inspected and verified on
15.07.2003 by respondent No.3 through his
Assistant Commissioner, which was mandated under
the notification dated 31.07.2001. Respondent
No.4 physically verified various items of
machinery and plant installed in the factory and,
on completion of erection thereof, sent a report
to respondent No.3 pursuant to a letter dated
15.07.2003. After the verification were
completed, the verification report was filed by
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the Jurisdictional Excise Officers i.e.
respondent No.4 and 5 to respondent No.3, and an
eligibility certificate dated 28.07.2003 was
issued by the High Powered Committee. The
petitioner also informed respondent Nos.3, 4 and
5 by a letter dated 29.07.2003 that the erection
and installation work had been completed and the
commercial production from the new unit for anti-
corrosion and concrete weight coating had
commenced from 29.07.2003.
5. The excisable goods as manufactured by the
petitioner were cleared and it paid the duty of
excise thereon aggregating to Rs.41,53,10,827/-.
All these happened in the year 2003. Thereafter,
the amount of duty was refunded to the petitioner
as required under the notification dated
31.07.2001. The period of such payment of duty
and refund commenced from August, 2003 to
February, 2008. The respondent No.3 issued an
impugned show-cause notice dated 17.09.2008
seeking recovery of the entire amount of refund
and also proposed the imposition of penalty of
equal amount by invoking the provision of Section
11A of the Central Excise Act, 1944 (for short
“the Act”) read with Section 11AB and 11AC of the
Act. It is alleged that the petitioner has made
willful misstatement and suppression of facts to
claim refund, which has been assailed by the
present writ petition.
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6. The Coordinate Bench of this Court vide order
dated 22.07.2010 passed in the present writ
petition, while issuing rule had granted interim
relief and stayed the show-cause notice dated
17.09.2008. The Coordinate Bench in the said
order has specifically recorded that by the
impugned show-cause notice issued by the
Commissioner, Central Excise, Rajkot, the
certificate dated 28.07.2003 issued by the
committee formed under the notification dated
31.07.2001 has been questioned. It was recorded
that prima facie the Commissioner, Central
Excise, Rajkot, who has issued the show-cause
notice has no jurisdiction to adjudicate on the
validity of the said certificate.
SUBMISSIONS MADE ON BEHALF OF PETITIONER
7. Learned Senior Advocate Mr.Santhanam
appearing for the petitioner along with learned
advocate Mr.Harshadray Dave, has questioned the
jurisdiction of the respondent No.3 in issuing
the show-cause notice and questioning the
validity of the certificate, which has been
issued by the committee formed under the
notification dated 31.07.2001, which has been
issued under the provision of Section 5A of the
Act. It is submitted that the show-cause notice
is premised upon the investigation done by
respondent No.2, which is nothing but a witch-
hunting exercise. It is submitted that in order
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to overcome the limitation of one year as
prescribed in the provisions of Section 11A of
the Act, the allegations of misstatement and
misrepresentation have been brought up.
8. Learned Senior Advocate Mr.Santhanam has
invited attention of this Court to the
certificates issued by the committee. The two
certificates are dated of 28.07.2003 certifying
that the same be issued in terms of paragraph
No.3(2) of notification dated 31.07.2001, which
certifies that the petitioner has set-up the new
st
unit during the period starting from 31 day of
July and ending on 31.07.2004. The second
certificate certifies that the original value of
investment in plant and machinery, as required in
terms of paragraph No.3(4) of the notification
dated 31.07.2001, for the purpose of availing the
exemption. It is submitted that the petitioner
has also intimated the Joint Commissioner,
Central Excise, Rajkot. The Assistant
Commissioner of Central Excise, Bhuj Division,
intimated the Joint Commissioner, Central Excise,
Rajkot, with a communication dated 16.07.2003
about the functioning of the new unit and
availing exemption under the notification dated
31.07.2001. Further, the report of the Engineers
India Limited with regard to the coating of pipes
with partial epoxy and adhesive, which are 15 in
number, is also pointed to us. It is submitted
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that all these communications and certificates
prove that the petitioner has set-up the new unit
and accordingly, has commenced the production of
the pipes coating of the pipes. It is thus,
submitted that there was no suppression of facts
as alleged in the impugned show-cause notice by
the petitioner, and the only option available to
the respondent No.3 is to question the validity
of the certificates issued by the statutory
committee was to initiate appropriate proceedings
in accordance with law by filing an appeal
against the refund orders.
9. It is submitted that the assessee had paid
the central excise duty for the period commencing
from July, 2003 to February, 2008, and for this
entire period, the assessments of the excisable
goods produced and cleared on payment of duty
have been duly verified and accepted and have
become final. He has pointed out various refund
orders for the aforesaid period and has submitted
that the Assistant Commissioner, upon
verification of the report submitted by the
Superintendent, Central Excise, Range-1, has
sanctioned the refund amount, and it is not open
for the respondent number 3 to reopen such
assessment. While placing reliance on the
judgment of the Supreme Court in case of CIT vs.
Mahindra and Mahindra Limited, (1983) 4 SSC 392,
it is submitted that the respondent No.3 cannot
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question the certificate issued by the High
Powered Committee pursuant to the recommendation
of respondent No.3, who was also the member of
the High Powered Committee, and upon having been
fully satisfied about the correctness, respondent
No.3 cannot take a volte face, after a period of
five years and issue show-cause notice by
alleging suppression of facts and misleading of
the officers of the respondents. It is submitted
that the investigation done by respondent No.2 is
nothing but a farce, and a false case has been
fabricated against the petitioner by alleging
that it has violated the provisions of the Act.
10. Finally, learned Senior Advocate Mr.Santhanam
has submitted that for the very same period, the
proceedings with regard to the refund, which
included the amount of education Cess was
initiated against the petitioner and by the
Order-in-Original dated 26.03.2021, the Assistant
Commissioner confirmed and ordered recovery of an
amount of Rs.45,49,157/- on account of education
Cess and higher education Cess, which was
subsequently challenged by the petitioner by
filing an appeal before the Commissioner of
Appeals and the Commissioner of Appeals, by the
order dated 28.04.2022 set aside the Order-in-
Original. It is submitted that said order has
been accepted by the respondents and has become
final.
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11. It is contended that in neither of the
aforesaid orders the respondent has alleged any
misrepresentation, fraud on the petitioner in
claiming the refund and in absence of such
allegations in the said orders, which have become
final, the impugned show-cause notice, which has
issued beyond the period of one year is required
to be quashed and set aside. It is submitted that
the things which has been settled cannot be
unsettled after the period of five years without
questioning the formation of the High Powered
Committee pursuant to the notification and its
exercise of power in issuance of the certificate.
In this context, he has placed reliance on the
judgment of the Supreme Court in case of Titan
Medical Systems Private Limited versus Collector
of Customs New Delhi, (2003) 151 ELT 254. He has
also placed reliance on the judgment of Delhi
High Court dated 22.11.2024, in case of Design
tools versus Union of India and others passed in
Writ Petition (Civil) No.14477 of 2022. Thus, it
is urged that the writ petition may be allowed by
setting aside the impugned show-cause notice.
SUBMISSIONS MADE ON BEHALF OF RESPONDENT(S)
12. Opposing the aforesaid submissions and the
present writ petition, learned Senior Standing
Counsel Ms.Sancheti has invited the attention of
this Court to the facts recorded by the
respondent No.3 in the impugned show-cause
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notice. It is submitted that pursuant to the
report of the investigation undertaken by the
Investigating Wing by the Deputy Commissioner
Vigilance, who is authorized as per the
notification dated 27.02.1998, it was noticed
that the petitioner has availed the refund,
without establishing a complete new unit and by
fraudulent means it was shown that the goods were
manufactured in their pipe coating unit. She has
submitted that it was also found that the
concerned person who was working at the relevant
time could identify only one item in respect of
plant and in his statement dated 18.07.2008, he
could not furnish the certificate relating to the
certificate in support of his claim that superior
kerosene oil was used in diesel generator sets.
It was submitted that looking to the electricity
consumed, it was not possible to believe that the
new plant has been set within a short period of 3
months. It is submitted that a thorough
investigation revealed that the certificate
granted on 28.07.2003 by the committee about
completion of plant was obtained by misleading
the departmental officers. While referring to the
details of the facts as incorporated in the show-
cause notice, it is submitted that the petitioner
had done the over-invoicing of the plant and
machinery for Air Conditioning (AC) and Central
Water Chilling Plant (CWCP) unit and the
concerned officers were misled at the relevant
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time. Thus, it is submitted that looking to the
consumption of electricity consumed and the
diesel used in coating of the pipes during the
period in question, it was found that the figures
were highly disproportionate and hence, the show-
cause notice was issued to the petitioner seeking
refund and imposition of penalty under the
provision of section 11(a) of the Act. She has,
thereby, referring to said provisions of section
11(a) of the Act has submitted that the
respondent No.3 has the jurisdiction to issue
show-cause notice demanding the refund and
imposition of penalty if it is found that the
refund has been obtained due to fraud and
misrepresentation and such action can be
initiated within period of 5 years. Thus, she has
urged that the present writ petition may not be
allowed. No further submission has been advanced.
ANALYSIS AND OPINION
13. Before, we arrive on any opinion, we may
clarify that we are conscious of the settled legal
principle governing entertainability of the writ
petition under Article 226 of the Constitution of
India against a show-cause notice. The legal
precedent establishes that, the High Court should
not routinely entertain writ petitions challenging
the show-cause notices. Unless a notice is
entirely void (non est) and there is abuse of
authority and power, and there is an absolute
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lack of jurisdiction, the petitioner must be
directed to respond to the notice and raise the
grievances before the issuing authority. The
established facts of the present case, and the
subsequent orders passed in favour of the
petitioner indicate that the respondent No.3 has
acted without authority of law, and has illegally
invoked its jurisdiction in issuing the show-
cause notice. Additionally, we are of the opinion
that the petitioner cannot be asked to face the
proceedings after a period of 17 years, in wake
of the fact, that the pleadings are over and the
interim order dated 22.07.2022 is in operation,
and is not assailed by the respondents for all
these years.
14. The entire case of the respondent no.3, who
has issued the impugned show-cause notice hinges
on the allegation that the petitioner did not
set-up new plant as per the notification dated
31.07.2001, and claimed refund of duty, though it
was non-operational.
15. In exercise of the powers under sub-section
(1) of section 5A of the Central Excise Act read
with sub-section (3) of section 3 of the Act, the
Central Government issued a notification dated
31.07.2001 for exemption to the excisable goods
and cleared from the units in Kachchh district of
Gujarat. It appears that the said notification
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has been issued to invite the entrepreneurs to
come and set-up new industries in the earthquake-
hit areas, which rocked Gujarat in 2001. The
petitioner is one of the entrepreneurs, who
immediately acted upon the appeals of the Central
and State Governments and set-up a new industrial
undertaking located at Nanakapaya, Taluka Mundra,
District Gujarat and made total investment in
plant, machinery, equipments and infrastructure
from 2001-2002 onwards till March, 2008, the
aggregate sum of which is Rs.1,30,68,88,914/-.
The petitioner set up the industrial units, the
first of making steel pipes and the second for
steel pipe coating, and completed the erection
and installation of plant and machinery besides
acquiring land and providing building
infrastructure facilities. The petitioner
informed about the installation of the capital
equipments for the manufacture of excisable goods
to the respondent Nos.4 and 5 on 10.07.2003.
16. On 15.07.2003, the respondent No.3 through
its Assistant Commissioner i.e. respondent No.4,
properly verified the installation of plant and
machinery and value thereof. The respondent No.4
has physically verified the various items of
machinery and installations and sent a report to
respondent No.3 on 15.07.2003. The verification
was completed and verification report was filed
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by the jurisdictional Excise Officer, respondent
No.4 and 5 through the respondent No.3 and
accordingly, the certificate dated 28.07.2003 was
issued by the High Powered Committee certifying
that the petitioner has set-up a new unit during
st
the period starting from 31 day of July and
st
ending on 31 July, 2004 in terms of the
notification dated 31.07.2001. The certificate
also mentions that it is issued in terms of
paragraph No.3(II) of the notification dated
31.07.2001 for the purpose of availing exemption
under the said notification and is without
prejudice to requirement of fulfillment of all
conditions in the aforesaid notification.
17. At this stage, it would be apposite to refer
to the contents of the notification dated
31.07.2001. The relevant paragraphs read as
under:
“2. The exemption contained in this notification
shall be given effect to in the following manner,
namely :-
(a) The manufacturer shall submit a statement of
the duty paid other than the amount of duty paid by
utilization of CENVAT credit under the CENVAT Credit
Rules, 2001, to the Assistant Commissioner or the
Deputy Commissioner of Central Excise, as the case
may be, by the 7th day of the next month in which the
duty has been so paid.
(b) The Assistant Commissioner or Deputy
Commissioner of Central Excise, as the case may be,
after such verification, as he may deem necessary,
shall refund the amount of duty paid other than the
amount of duty paid by utilization of CENVAT credit
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during the month under consideration to the
manufacturer by the 15th day of next month.
(c) If there is likely to be any delay in such
verification, the Assistant Commissioner or the
Deputy Commissioner of Central Excise, as the case
may be, shall refund the amount on provisional basis
by the 15th day of the next month of the month under
consideration, and thereafter may adjust the amount
of refund by such amount as may be necessary in the
subsequent refunds admissible to the manufacturer.
3. The exemption contained in this notification shall
be subject to the following conditions, namely:
(i) It shall apply only to new industrial units, that
is to say, unit which are set up on or after the date
of publication of this notification in the Official
Gazette but not later than the 31st day of July,
2003;
(ii) In order to avail of this exemption, the
manufacturer shall produce a certificate from a
Committee consisting of the Chief Commissioner of
Central Excise, Vadodara and the Principal Secretary
to the Government of Gujarat, Department of Industry,
to the jurisdictional Assistant Commissioner or the
Deputy Commissioner of Central Excise, as the case
may be, that the unit in respect of which exemption
is claimed is a new unit and has been set up during
the time period specified in condition (i) above.
(iii) Before effecting clearances under this
notification, the manufacturer shall furnish a
declaration regarding the original value of
investment in plant and machinery installed in the
factory as on the date of commencement of commercial
production, to the Assistant Commissioner or the
Deputy Commissioner of Central Excise, as the case
may be.
(iv) The manufacturer shall also produce a
certificate from the said Committee confirming the
original value of investment and such a certificate
shall be produced within a period of one month from
the date of commencement of commercial production, or
such extended period as the said Assistant
Commissioner or Deputy Commissioner may allow.
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(v) In case on the basis of such certification, or
otherwise, the original value of investment in plant
and machinery.
(a) is found to be less than rupees twenty crore
but was declared to be rupees twenty crore or more,
the manufacturer shall be liable to pay back the
entire amount of duty exemption availed under the
notification along with interest at the rate of
twenty four per cent per annum as if no exemption
were available;
or
(b) is found to be less than the declared value and
was declared to be below rupees twenty crore, the
manufacturer shall be liable to pay duty on the
goods cleared, if any, in excess of twice and
actual value of original investment in each of the
years during which exemption has been claimed under
this notification alongwith interest at the rate of
twenty four per cent per annum, as if no exemption
were available to those clearances under this
notification.
(vi) The exemption shall apply for a period not
exceeding five years from the date of commencement of
commercial production by the unit.”
18. Thus, the provision of paragraph No.3(II) of
the notification dated 31.07.2001 mandates that
the manufacturer shall produce a certificate from
a committee consisting of Chief Commissioner of
Central Excise, Baroda and the Principal
Secretary to the Government of Gujarat,
Department of Industries, to the jurisdictional
Assistant Commissioner or the Deputy Commissioner
of Central Excise as the case may be that the
unit in respect of which exemption is claimed is
a new unit and has been set up during the time
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period specified in condition No.1 above.
Paragraph No.4 further requires production of
certificate from the said committee confirming
the original value of investment. Thus, the
certificate dated 28.07.2003 has been issued by
the committee, which is formed under the
notification dated 31.07.2001 as per the
statutory provisions of the Act. Thus, this
committee has the color of a statutory authority
which has issued the certificate certifying that
the petitioner has set-up a new unit during the
st st
period from 31 day of July to 31 July, 2004.
19. The second certificate of the even date i.e.
28.07.2003 and has been issued by the committee,
which certifies that the original value of
investment in the plant and machinery in the
factory of the petitioner M/s.Saw Pipes Limited
is Rs.22,18,06,081/- as on 11.07.2003. Prior to
that on 16.07.2003, the Assistant Commissioner of
Central Excise, Bhuj Division, vide its
communication dated 16.07.2003 has informed the
Joint Commissioner, Central Excise, Rajkot about
setting-up of new unit and availing exemption
sorry setting up of new unit. In this
communication, the Assistant Commissioner of
Central Excise has categorically recorded that on
inspection of the premises, it is found that the
main plant of anti-corrosion and concrete weight
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coating is ready to start production. The details
of installed machinery in the plant are referred
in paragraph No.4, which are 17 in numbers. In
paragraph No.5 of the said communication, it is
categorically mentioned that the entire electric
system including five DG sets of 750 KVA each and
sub-station are also in operation. The
Commissioner has verified the investment and
physically visited the site and concluded that
the actual figure of investment in plant and
machinery comes to Rs.22,18,06,081/-. The
petitioner thereafter, claimed exemption of
excise benefits and accordingly the Assistant
Commissioner, Central Excise Division, Bhuj
intimated the Additional Commissioner (Tech),
Central Excise and Customs, Rajkot.
20. The petitioner has also produced the
inspection done by the Engineers India Limited
which is regulatory authority under the Ministry
of Industry, which has inspected the coated pipes
of the petitioner at its unit. After the
production commenced, in the new unit, the
petitioner claimed refund of duty paid. A perusal
of the refund orders for the aforementioned
period reveals that the Assistant Commissioner,
Central Excise, while sanctioning the refund has
examined the copies of the certificate issued by
the committee. The commercial production,
valuation of the investment in plant and
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machinery, and the verification report of
Superintendent Central Excise Range-1. The refund
order also mentions about the challans produced
by the petitioners comprising of duty and
education Cess, the profit and loss accounts,
Central Value Added Tax (CENVAT) credit accounts,
etc. After examination of the details, the
Assistant Commissioner has sanctioned the refund
for the aforesaid periods from August, 2003 to
February, 2004.
21. On 17.09.2008, the Commissioner, Central
Excise Rajkot, Respondent no.3 issued the
impugned show-cause notice by alleging that the
petitioner has got the refund sanctioned under
the notification dated 31.07.2001 without
establishing the new unit. It is alleged that by
misleading the departmental officers, the
petitioner had obtained the certificate dated
28.07.2003. The show-cause notice stems out of
the investigation done by intelligence wing under
Directorate of General of Vigilance, Mumbai. The
Officers of the Vigilance department visited the
plant on 03.03.2007, and in the month of
December,2007. The petitioner fully co-operated
with the proceedings, and supplied all the
documents as demanded.
22. The Respondent No.3 has doubted the new
machinery cost of installed machine in the year
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C/SCA/735/2009 JUDGMENT DATED: 15/07/2026
2008, and also has compared the consumption of
diesel in DG (diesel generators), electric
production from such diesel sets and the quantity
manufactured of coated steels pipes from old unit
and new unit on the basis of vigilance inquiry.
Ultimately, it is recorded that the CWC plant was
th
not in existence as on 6 October, 2003. Thus, it
is alleged that the certificate dated 28.07.2003
issued by the High Powered Committee is procured
by misleading the officers.
23. It is not disputed that the certificates
dated 28.07.2003 issued by the Committee
certifying the establishing of the new unit and
valuation of the plant and machinery has been
forwarded to the Respondent no.3, however, the
same were never doubted. The respondent no.3
accepted the certificates, and thereafter has
also processed the refunds after scrutiny of
various documents as previously mentioned. The
value, installation and utilization of plant and
machinery was duly verified by departmental
officers and by the Assistant Commissioner along
with the Superintendent in the month of July,
2003, and again by independent surveyor appointed
by the department in December, 2007. None of the
officers have complained that the coating plant
did not exist.
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C/SCA/735/2009 JUDGMENT DATED: 15/07/2026
24. In our opinion the allegations about
misrepresentation and fraud can only be examined
by the High Powered Committee, formed under the
subordinate/delegated legislation under the Act,
which has issued the certificate, and the
respondent has no jurisdiction to question the
same in wake of the facts that the Committee,
which has issued the certificates, has not
doubted it. Neither the respondent No.3 has
attempted to inform the High Powered Committee,
nor he has taken any steps to inform the
Committee about the alleged misrepresentation of
the petitioner relating to the setting up of the
unit and commencing the production from the
plant.
25. The respondent No.3 has failed to point out
that he had the authority and power to question
the certificate issued by the High Powered
Committee by alleging that the same are obtained
by misleading the departmental officers. Nothing
is brought on record that any actions are taken
against any of the departmental officers, who
were involved in preparing the reports after
investigating the factory premises of the
petitioner. Thus, the show-cause notice
questioning the certificate issued by the High
Powered Committee is not only illegal but without
jurisdiction and hence, requires to be interfered
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C/SCA/735/2009 JUDGMENT DATED: 15/07/2026
with in exercise of powers under Article 226 of
the Constitution of India.
26. It is interesting to note that the claim of
education Cess, which formed part of the refund,
was subjected to scrutiny by the respondent
authority, and ultimately, vide order dated
26.03.2021 for the aforesaid period from October
2004 to 2008, the sanctioning of the refund along
with education Cess was reopened and re-examined.
27. While questioning the sanctioning of
educational Cess, along with the refund amount in
the hearing before the competent authorities,
i.e. the Assistant Commissioner, in the
proceedings issued pursuant to the show-cause
notice dated 04.11.2009 relating to the
sanctioning of educational Cess, has not a
whispered about any allegations,
misrepresentations, fraud committed by the
petitioner, while installing the plant machinery
and commencing the production from the effective
dates as mentioned in the certificates. The
proceedings initiated vide show-cause notice
culminated in to the Order-in-Original dated
26.03.2021, by which the Assistant Commissioner
ordered refund of Education Cess by holding that
the same can be said to be ineligible in terms of
the notification dated 31.07.2001 as it was a
stand alone scheme. The Order-in-Original dated
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C/SCA/735/2009 JUDGMENT DATED: 15/07/2026
26.03.2021 was challenged by the petitioner by
filing an appeal before the Commissioner of
appeals. By the order dated 28.04.2022, the
appeal was allowed by setting aside the Order-in-
Original dated 26.03.2021. We are informed that
the appellate order has become final. Thus, the
department has not levelled any allegations of
fraud or misrepresentation in the proceedings in
which the claim of education Cess which formed
the part of the refund for the same period has
been examined. Hence, in absence of any
allegations, forming part of the impugned of
show-cause notice in subsequent proceedings, the
impugned show-cause notice becomes vulnerable.
28. Thus, on an overall analysis, and in light of
the peculiar established facts, we have
entertained the writ petition challenging the
show-cause notice. The impugned show-cause notice
dated 17.09.2008 issued by the respondent No.3 is
declared as arbitrary and is an abuse of the
authority and power bereft of jurisdiction hence,
the same is quashed and set aside.
As a sequel, the connected civil application
also stands disposed of.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(VAIBHAVI D. NANAVATI,J)
NVMEWADA/WB-1
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