IMPORTANT POINT
Section 9-D of Central Excise and Salt Act, 1944 is intra vires.

JUDGMENT :

DIPANKAR DATTA, J.

These appeals, by special leave, challenge the judgment and order dated 28th August, 2009 rendered by the Delhi High Court (hereafter ‘the High Court’, for short) while disposing of 5 (five) writ petitions, viz. WP(C) Nos. 1854 and 1895 to 1898 of 1992.

2. The High Court, for the reasons assigned in the impugned judgment, declared section 9-D of the Central Excise and Salt Act, 1944 (hereafter ‘Excise Act’, for short) as intravires while dismissing the writ petitions.

3. In course of hearing before us, Mr. S.K. Bagaria, learned senior counsel appearing for the appellants, did not even attempt to assail the reasons assigned by the High Court for up-holding the constitutional validity of section 9-D of the Excise Act. However, Mr. Bagaria argued that by a judgment and order dated 25th April, 2008, this Court had remitted the matters back to the High Court for consideration thereof afresh. In view of the judicial mandate, while deciding the writ petitions afresh on remand, the High Court could not have limited its decision only to the issue relating to vires of section 9-D. The writ petitions, as amended, also raised the issue as to how the essential pre-requisites of section 9-D were breached by the department in the adjudication orders. The effect of the principles and pre-requisites laid down by the High Court for invocation of section 9-D vis-à-vis the appellants’ case could not have been left undecided.

4. According to Mr. Bagaria, the principles laid down by the High Court in the impugned judgment ought to have been applied to test the legality and correctness of the impugned action of the department and there being apparent breach of such principles at the end of the department, the High Court committed an error of law in not deciding the other issues raised in the writ petitions. In other words, according to Mr. Bagaria, the High Court could not have stopped at deciding the issue of vires of section 9-D by reading it down and summarizing the conditions precedent in-built into it and it was obligatory for the High Court to decide the writ petitions in its totality; and while so deciding, to declare whether on the parameters of the conditions precedent in section 9-D, as laid down in the impugned judgment, the petitioners were entitled to any relief or not.

5. Mr. Bagaria continued by submitting that the details of the earlier proceedings as well as all earlier orders including the orders passed by the Customs, Excise and Gold Control Appellate Tribunal (hereafter ‘Tribunal’, for short) and this Court were placed on record before this Court by way of a ‘status chart’. Such status chart was reproduced in the judgment and order dated 25th April, 2008; and after noting all these facts, the matters were remitted to the High Court for deciding the writ petitions afresh. It is not as if the remand was only for deciding the issue of section 9-D alone without deciding the remaining issues raised in the writ petitions.

6. The argument of Mr. Bagaria was that if the effect of the principles and pre-requisites laid down by the High Court vis-à-vis the appellants’ case were to be left undecided, the entire proceedings continuing since the last several years would simply be rendered academic. He has, therefore, endeavoured to persuade us hold that the High Court committed an error of law requiring correction by us.

7. Mr. Bagaria referred to the decisions of this Court in State of UP vs. Mohammad Nooh, AIR 1958 SC 86, Calcutta Discount Company vs. ITO, AIR 1961 SC 372, Institute of Chartered Accountants of India vs. L.K. Ratna, (1986) 4 SCC 537 and Andaman Timber Industries vs. CCE, (2016) 15 SCC 785 in support of his arguments.

8. To appreciate the contentions of Mr. Bagaria, we need to take a quick look at the events preceding the impugned judgment and order.

9. The facts giving rise to the writ petitions reveal that huge demands of about Rs. 94,00,00,000/-were raised by the department on the ground that the appell