OD –9

ORDER SHEET

WPO/1333/2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE

HINDUSTAN ENGINEERING AND INDUSTRIES LIMITED

VS
UNION OF INDIA AND ORS.

BEFORE:
The Hon'ble JUSTICE MD. NIZAMUDDIN
Date: 26th July, 2023.
Appearance:
Mr. Saumabho Ghose, Adv.
Mr. S. Sharma, Adv.
Mr. R. Dutt, Adv.
Mr. S. Bhattacharya, Adv.
…For the Petitioner
Mr. Siddharth Lahiri, Adv.
…For Union of India
Mr. K.K. Maiti, Adv.
Mr. Tapan Bhanja, Adv.
…For CGST Authority

The Court: Heard learned advocates appearing for the parties.

By this writ petition, petitioner has challenged the impugned coercive

action of issuance notice dated 2nd June, 2023, under Section 11(2)(i) of

Central Excise Act, 1944 and Section 87(b)(i) of Chapter V of Finance Act,

1994 on the basis of demand raised under Rule 8(3A) of the Central Excise

Rule, 2002 which has been declared ultra vires by different High Courts and

considering the same this Court has passed impugned order staying the

recovery of the demand by order dated 12th May, 2017 in the case of “Alom

Extrusion Ltd. & Ors. vs. Deputy Commissioner, Central Excise and Ors.”

reported in (2017) SCC OnLine Cal 8622.

Mr. Maiti, learned advocate appearing for the respondent Authority

concerned is not in a position to deny the aforesaid legal and factual

position that Rule 8(3) of the aforesaid Rule has already been declared ultra
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vires by different High Courts and that another coordinate Bench of this

Court considering the same has also stayed the recovery by the aforesaid

order in the case of Alom Extrusion Ltd. (supra). Mr. Maiti though submits

that against the order of the Hon’ble Gujarat High Court on the issue

department has filed SLP before the Supreme Court which is pending

without any stay.

Considering the facts and circumstances of the case and submissions

of the parties, I am of the considered view that this matter should be heard

on exchange of affidavits and also of the view that petitioner has been able

to make out a prima facie case for an interim order. Accordingly, there will

be stay of the impugned notice dated 2nd June, 2023 and all subsequent

proceeding till the disposal of the writ petition.

Let the respondents file affidavit-in-opposition within four weeks;

petitioner to file reply thereto, if any, within two weeks thereafter.

The matter shall appear for final hearing in the monthly list of

October, 2023.

(MD. NIZAMUDDIN, J.)

TR/
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