IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WP(C).No. 33731 of 2006(N) --------------------------------------- PETITIONER(S): ----------------------- KARTHIKEYAN T.K., VISHNU MANA, C.M.C.29, CHERTHALA P.O., CHERTHALA, ALAPPUZHA. BY ADV. SRI.N.R.CHANDRASEKHARAN SRI.T.H.CHACKO SRI.SAJAN VARGHESE RESPONDENT(S): -------------------------- 1. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, OFFICE OF THE CALICUT COMMISSIONERATE, MANACHIRA, CALICUT. 2. THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, SNB, WPC BUILDING, FKCCI COMPLEX, K.G.ROAD, BANGALORE. 3. M/S.INDIAN TELEPHONE INDUSTRIES LTD., PALAKKAD, KERALA STATE. 4. DIRECTOR OF CENTRAL BUREAU OF INVESTIGATION, CBI HEAD QUARTERS, R.K.PURAM, NEW DELHI. ADV. SRI.N.N.SUGUNAPALAN (SR.) FOR R3 SRI.S.SUJIN FOR R3 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1 & R2 SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCIS FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33731/2006 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE INFORMATION IN WRITING DT. 20.5.93 OF THE PETITIONER BEFORE THE IST RESPONDENT REGARDING EXCISE DUTY EVASION. P2:- COPY OF THE SANCTION ORDER NO.7/95-96 DT. 24.1.96 OF THE IST RESPONDENT SANCTIONING AN ADVANCE REWARD OF RS. 5 LAKHS TO THE INFORMER. P3:- COPY OF THE CERTIFICATE DT. 6.2.96 REGARDING DISBURSEMENT OF RS.5 LAKHS AN ADVANCE REWARD TO THE INFORMER BY THE IST RESPONDENT. P4:- COPY OF THE PURCHASE ORDER PLG./14-42/96-97 DT. 19.3.97 FOR THE SUPPLY OF OCB-TAX EXCHANGE. P5:- COPY OF THE INFORMATION IN WRITING DT. 17.4.98 TOGETHER WITH ANNEXURE-I AND II (2ND INFORMATION ) OF THE PETITIONER BEFORE THE IST RESPONDENT FURNISHING INFORMATION OF AN EXCISE DUTY EVATION OF RS. 4.14 CRORES DURING 96-97 AND 97-98 BY M.S. ITI LDT. P6:- COPY OF THE SHOW CAUSE NOTICE C.NO.V/85/15/1/2000 CX ADG. SL. NO.21/2000 DT. 14.2.2000 OF THE IST RESPONDENT TO THE 3RD RESPONDENT AND OTHERS. P7:- COPY OF THE REPRESENTATION DT. 18.6.02 OF THE PETITIONER BEFORE THE SIT RESPONDENT. P8:- COPY OF THE JUDGMENT DT. 29.10.03 IN WP(C) NO.33911 OF 03 BEFORE THE HONOURABLE HIGH COURT OF KERALA FILED BY THE PETITIONER. P9:- COPY OF THE ORDER-IN-ORGINAL NO.8/03 DT. 17.12.03 ISSUED BY THE IST RESPONDENT DEMANDING RS. 11.03 CRORES AND OTHER SUM FROM THE 3RD RESPONDENT AND OTHERS. P10:- COPY OF THE LETTER C.NO.IV/06/53/03 DT. 6.2.04 OF THE IST RESPONDENT TO THE PETITIONER. P11:- COPY OF THE REPRESENTATION DT. 24.2.04 OF THE PETITIONER BEFORE THE IST RESPONDENT. P12:- COPY OF THE CERTIFIED COPY OF THE JUDGMENT DT. 28.3.05 IN WP(C) 9951/04 BEFORE THE HONOURABLE HIGH COURT OF KERALA FILED BY THE PETITIONER HEREIN. P13:- COPY OF THE CERTIFIED COPY OF THE JUDGMENT DT. 3.6.05 IN WA. NO.1138/05 BEFORE THE HONOURABLE HIGH COURT OF KERALA. P14:- COPY OF THE LETTER DT. 20.6.05 SEND BY THE COUNSEL FOR THE PETITIONER TO THE 2ND RESPONDENT AND ANOTHER. W.P.(C) NO.33731/2006 P15:- COPY OF THE POSTED ACKNOWLEDGMENT CARD SIGNED ON 23.6.05 BY THE OFFICE OF THE 2ND RESPONDENT. P16:- COPY OF THE LETTER DT. 20.7.05 OF THE JOINT COMMISSIONER OF THE IST RESPONDENT TO THE COUNSEL FOR THE PETITIONER. P17:- COPY OF THE IMPLEADING PETITIONDT. 11.9.05 IN APPEAL NO. NIL OF 2004 BEFORE THE 2ND RESPONDENT ALSO AFFIXED WITH ITS SEAL FOR ITS DUE PRESENTATION. P18:- COPY OF THE PETITION AND AFFIDAVIT DT. 11.9.05 IN APPEAL NO. OF 04 BEFORE THE 3RD RESPONDENT TO ISSUED CERTIFIED COPIES. P19:- COPY OF THE NOTICE DT. 17.10.05 SEND BY THE COUNSEL FOR THE PETITIONER TO THE IST RESPONDENT TO FURNISH APPEAL. NO. P20:- COPY OF THE FINAL ORDER DT. 10.11.05 IN APPEAL NO.E/278/03 TO 282/03 PASSED BY THE 2ND RESPONDENT. P21:- COPY OF THE LETTER (REPLY) DT. 21.11.05 SEND FROM THE OFFICE OF THE IST RESPONDENT TO THE COUNSEL FOR THE PETITIONER. P22:- COPY OF THE LETTER NO.115/23/95/MMD DT. 17.10.95 OF THE MINISTRY OF COMMUNICATION DEPARTMENT OF TELECOMMUNICATIONS, SANCHAR BHAVAN, NEW DELHI. P23:- COPY OF THE LETTER DT. 21.12.96 ISSUED FROM THE DM(ISNP) ES, ITI LTD., MANKAPUR TO MD (SALES & C.EX) LTD., PLKD, KERALA. P24:- COPY OF THE ACCOUNTING INVOICE (VILL) NO.7000011 DT. 31.5.97 OF THE 3RD RESPONDENT FOR PAYMENT OF EXCISE DUTY AND TRANSPORT VEHICLE. P25:- COPY OF THE COMMERCIAL INVOICE (BILL) NO.7920049 DT. 12.1.98 OF THE 3RD RESPONDENT TOGETHER WITH COVERING LETTER DETAILING DOCUMENTS ENCLOSED FOR PAYMENT FROM THE PAYMENT AUTHORITY. P26:- COPY OF THE PROCEEDINGS REF. MS/210/93/01/TF-1 DT. 18.6.93 REGARDING APPROVAL FOR PAYMENT OF CENTRAL EXCISE DUTY TO BE PAUD BY 3RD RESPONDENT. P27:- COPY OF THE ORDER (ORIGINAL) NO.38/93 DT. 30.11.93 OF THE COLLECTOR OF CENTRAL EXCISE AND CUSTOMS, KOCHI 18. P28:- COPY OF THE ''INDEX'' OF W.P.(C) NO.15294/06 BEFORE THIS HONOURABLE COURT. P29:- COPY OF THE JUDGMENT DT. 14.6.06 IN WP(C) NO.15294/.06 OF THIS HONOURABLE COURT. W.P.(C) NO.33731/2006 P30:- COPY OF THE JUDGMENT DT. 11.7.06 IN W.A. NO.1232/06 OF THE DIVISION BENCH OF THIS HONOURABLE COURT. P31:- COPY OF THE LAWYER NOTICE DT. 31.7.06 TO THE IST RESPONDENT. P32:- COPY OF THE LETTER (REPLY LETTER ) DT. 22.8.96 OF THE IST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE tss S.SIRI JAGAN, J. ================== W.P(C).No.33731 of 2006 ================== Dated this the 8th day of January, 2009 J U D G M E N T The petitioner challenges Exts.P20 and P32 orders. Ext.P20 is an roder of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT). The petitioner passed on certain information to the Central Excise authorities in respect of alleged evasion of duty by the appellant in the appeal in which Ext.P20 order was passed. Based on that, certain orders were passed by the adjudicating authority. Those orders were challenged in appeal before the CESTAT, in which Ext.P20 order has been passed. The operative portion of Ext.P20 reads thus: “16. All the appeals are, therefore, allowed and the impugned order of the learned Commissioner is hereby set aside with a direction to make final assessment under rule 9B(5) of the said rules for the period covered under the show cause notice in accordance with law and in the light of the observations made in this judgment. It is stated by the learned counsel for the appellant that the deposit of Rs.1 crore (Rupees one crore only) made by the assessee may be retained by the Revenue and be adjusted as per the outcome of the final assessment.” The petitioner challenged that order by filing W.P.(C).No. 15294/2006, in which a learned Single Judge of this Court passed Ext.P29 judgment, which reads thus: 'Ext.P20 is an order passed by the Customs, Excise and Service Tax Appellate Tribunal, Bangalore, whereby the appeals field by the w.p.c.33731/06 2 third respondent herein and others had been allowed. The final order is extracted herein below. “All the appeals are, therefore, allowed and the impugned order of the learned Commissioner is hereby set aside with a direction to make final assessment under rule 9B(5) of the said rules for the period covered under the show cause notice in accordance with law and in the light of the observations made in this judgment. It is stated by the learned counsel for the appellant that the deposit of Rs.1 crore (Rupees one crore only) made by the assessee may be retained by the Revenue and be adjusted as per the outcome of the final assessment.” Sri.Chandrasekharan, counsel appearing for the petitioner submits that his client is aggrieved by the above order and it is within his rights to challenge the above order. 2. However, I find it difficult to concur with the above submission. It is admitted that he had filed an application for impleading himself in the proceedings, but the authorities had disallowed the application. The claim of the petitioner is on the basis that he was an informer whereby it had been possible for the Central Excise and Customs Department to find evasion of duty at the instance of the third respondent and therefore, he was to be recognised as a person entitled to reward of 30% of the sum so found out as having been evaded. But, evidently such enquiry has not been so far concluded. The present order requires the commission to make a final assessment. Only if ultimately it is found that there is evasion, the question of reward to the informer arises. 3. I am of opinion that the writ petition is premature and is not entertainable. Reserving the rights of the petitioner to move appropriately in the mater as and when cause of action arises, the writ petition is dismissed.' The petitioner filed W.A.No.1232/2006 against that judgment. By Ext.P30 judgment, the Division Bench dismissed the writ appeal as lacking in merit. Subsequently, by Ext.P32 order the counsel for the petitioner was informed by the Assistant Commissioner (PREV) of the Central Excise Department that since CESTAT has w.p.c.33731/06 3 set aside the order in original passed by the adjudicating authority pursuant to the information submitted by the petitioner, which the department has accepted, the question of sanctioning of reward does not arise. 2. As far as Ext.P20 is concerned, the petitioner has no locus standi to challenge the same in so far as the same is between the Central Excise Authorities and the company, which is the appellant. In any event, the challenge against Exts.P20 had already been repelled by this Court in Exts.P29 and P30 judgments. What has been saved in Ext.P29 is only the right of the petitioner to seek payment of reward as and when fresh assessment order is passed as directed in Ext.P20 judgment. Such a situation has not arisen. That being so, the question of payment of reward to the petitioner does not arise. Therefore, challenge against Exts.P32, as it stands now, is also misconceived. That being so, the challenge against Exts.P20 and 32 are misconceived. Accordingly, the writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.33731/06 4