IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10078 of 2011 With Interlocutory Application No. 4376 of 2011 ====================================================== Indian Oil Corporation Limited having its Office at Barauni Refinery, P.O. Barauni Oil Refinery, P.S. Barauni, District Begusarai through Shri Vikash Chandra Jaiswal, Accounts Officer, son of Shri Vinod Kumar Jaiswal, resident of C/F 101, Barauni Refinery Township, P.O. Barauni Refinery, P.S. Barauni, Distric, Begusarai. .... .... Petitioner Versus 1. Commissioner of Central Excise and Service Tax, Patna having its Office at Central Revenue Building, Birchand Patel Marg, P.O. - G.P.O., P.S. - Kotwali, Patna -800001. 2. The Deputy Commissioner of Central Excise, Patna Division, Patna having its Office at Central Revenue Building, Birchand Patel Marg, P.O. - G.P.O., P.S. - Kotwali, Patna- 800001. 3. Assistant Commissioner of Central Excise, Patna Division, Patna having its Office at Central Revenue Building, Birchand Patel Marg, P.O. - G.P.O., P.S. Kotwali, Patna-800001. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. D.V. Pathy, Advocate. For the Respondent/s : Ms. Nivedita Nirvikar, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 7 29-08-2011 With the consent of the learned Advocates, the petition is heard and decided today. This petition under Article 226 of the Constitution is filed by the Indian Oil Corporation Limited, Barauni Refinery, Patna High Court CWJC No.10078 of 2011 (7) dt.29-08-2011 2 / 3 2 Begusarai to challenge the show cause notice dated 24th/28th February 2011 issued by the respondent no. 2 in respect of the consignment of 2156.004 MT of Neptha exported by the petitioner from Kandla Port. Learned Advocate Mr. D.V. Pathy has appeared for the petitioner. He has submitted that the said consignment of 2156.004 MT of Neptha though was exempt from payment of excise duty the petitioner paid excise duty in the sum of Rs. 1,14,56,953.52 erroneously. The petitioner, therefore, approached the respondent no. 3 for refund of the said amount. The application for refund came to be rejected by the respondent no. 3 under his order dated 4th March 2009. Feeling aggrieved, the petitioner preferred Appeal before the Commissioner (Appeals). The said Appeal was allowed on 30th August 2010. The Commissioner (Appeals) set aside the order of the Assistant Commissioner and directed to refund the sum of Rs. 1,08,85,138.28 to the petitioner. It is the grievance of the petitioner that in spite of the aforesaid direction issued by the appellate authority the authority below did not refund the amount; instead has issued the impugned show cause notice in the same subject matter. Mr. Pathy has submitted that once the issue has been decided by the appellate authority, the same cannot be raked up again in the guise of review or a change of opinion. The impugned notice is, therefore, unsustainable. The petition is contested by learned Advocate Ms. Nivedita Nirvikar. She has submitted that the order dated 30th August 2010 made by the appellate authority has been challenged by the department before the tribunal in Excise Appeal No. 726 of 2010. She candidly admits that pending the said appeal though the department has asked for stay of the order of the appellate Patna High Court CWJC No.10078 of 2011 (7) dt.29-08-2011 3 / 3 3 authority, the application is yet to be heard. Indisputably, the impugned order has been issued in respect of the consignment of 2156.004 MT of Neptha exported by the petitioner from Kandla Port. It was the subject matter of above- referred order dated 30th August 2010. Once the matter has been decided by the appellate authority, the assessing authority has no jurisdiction to issue the impugned notice. The impugned notice, therefore, deserves to be set aside. For the aforesaid reason, the petition is allowed. The impugned notice dated 24th/28th February 2011 (Annexure 6 to the writ petition) is quashed and set aside. Interlocutory Application stands disposed of. Unless the department obtains stay of the order dated 30th August 2010 within eight weeks from today, on 25th October 2011 the petitioner will be refunded the sum of Rs. 1,08,85,138.28, as directed by the Commissioner (Appeals). Dilip. (R.M. Doshit, CJ) (Birendra Prasad Verma, J)