TMI Blog2009 (10) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... - Inquiry which is being undertaken is to be brought to its logical end and in order to facilitate conclusion of said inquiry once action is being taken under Section 14 of the Act then qua the same no fault can be found. - Adjudication cannot be compared with investigation. – summons issued is an intimation requiring person to appear to give evidence and produce some documents – Summons not an order deciding any question or communicating decision taken - petitions lack substance and are dismissed accordingly. - 10128, 10126 and 10127(MB) of 2009 - - - Dated:- 28-10-2009 - Shri Prashant Chandra, Sr. Advocate and Ms. Sharddha Agarwal, Advocate, for the Appellant. Shri K.D. Nag, Counsel, for the Respondent. [Order]. - All these writ petitions have been filed by three different petitioners and therein following identical reliefs have been claimed for, which are being quoted below: "(a) Issue a writ of prohibition or writ, order or direction in the nature of prohibition, prohibiting the respondents to continue with the proceedings initiated under Section 1/1 of the Central Excise Act and not to summon the petitioners for appearance before them at Meerut or any place in fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y so paid. Based on an intelligence that M/s. Arora Aromatics Sambhal is availing Cenvat credit on inputs, namely menthol Flakes and Dementholised Oil (DMO) on the basis of bogus Cenvat invoices issued by M/s. Ruchi Infotech System, Lane No. 3B, Phase II SIDCO industrial Complex, Bari Brahmana, Jammu and M/s. Arora Aromatics, Sambhal were utilizing the Cenvat Credit so availed towards payment of duty on their final products for domestic clearances as well as on export of goods under rebate claim and were thereafter claiming the rebate on duty so paid on the exported goods, investigations were initiated by the officers of Central Excise of Meerut, II (Commissionerate against the said M/s. Arora Aromatics, Sambhal. Petitioner claims that they are only transporting goods for being used for manufacturing of other products hence they are not required to be registered under the provision of Excise Act the pre-requisite term and condition being that the goods so manufactured are dutiable and excisable goods for issuance of summons entitling said credit facility. Petitioners have also given details of the fact that at premises of the petitioner on 3-4-2006 search was conducted and statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer, it has been found that most of the premises/offices of the aforesaid companies were closed/non-existent/not maintaining any records. Petitioners have contended that time and again summons are received by them to appear, the summons dated 4-8-2009 and 14-8-2009 respectively has been received and petitioners claim that said proceedings are nothing but continuous harassment to them as petitioners are not at all engaged in the business of manufacturing of excise goods and have not availed any benefit of Cenvat credit, the impugned proceedings are without jurisdiction and same cannot be continued to harass and victimize and said proceedings are nothing but misuser of the statutory provisions. In this background as well as, as entire proceedings have been undertaken by the authority who has no authority to deal with the matter, writ of prohibition be issued and requisite relief claimed be allowed. 4. Submission to the similar effect has been advanced in other two writ petitions wherein notice under Section 14 of the Act have been issued to appear before the authority concerned on the same set of grounds. 5. Sri Prashant Chandra, Senior Advocate, assisted by Ms. Sharddha Agar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Uttaranchal." At this juncture Section 14 of the Central Excise Act, 1944 is being looked into. "Section 14 - Power to summon persons to give evidence and produce documents in inquiries under this Act - (1) Any Central Excise Officer duly empowered by the Central Government in this behalf shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making for any of the purpose of this Act. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required: Provided that the exemptions under Section 132 and 133 of the Code of Civil Procedure, 1908 (5 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the purpose of this Act. 10. Admitted position is that inquiry in the present case has been initiated by a team of Central Excise, Officers of Meerut qua factory of M/s. Arora Aromatics, Sambhal, Moradabad. Commissioner, Central Excise has got full authority and jurisdiction to make inquiry in respect of District Moradabad as per the notification, on which reliance has been placed by the petitioners. Once inquiry commenced at District Moradabad, has been initiated, then Commissioner Central Excise, at Meerut has got full authority to summon any person in evidence, whether he is situated in his territorial jurisdiction or not. Said authority of inquiry has been conferred in reference to the place of inquiry from where inquiry emanated. Here admitted position is that inquiry in question has commenced or investigation at district Moradabad, when the factory of M/s. Arora Aromatics Sambhal at Moradabad availing Cenvat credit has been raided upon, in this background any one whose attendance is necessary in the wisdom of Commissioner of the Central Excise was liable to be summoned and persons who are summoned are duty bound to attend as per direction given by Officer concerned and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act to the petitioner to cooperate in the investigation then summons which have been issued as understood in legal parlance, is an intimation requiring a person to whom it is issued to appear to give evidence and to produce some documents etc. It is not an order in the sense that it decides any question or communicates a decision taken. It merely intimates the person concerned that he is required to appear before the named authority for giving evidence and to produce a document etc. Issuance of summons normally follows an order for such issuance by the authority concerned but that order is not a consequence of any determination of a question at issue not is it in execution of any such determination. Said view has been taken by the Division Bench of this Court in the case of Hindustan Safety Glass Works Ltd. v. Assistant Collector, 1985 (21) E.L.T. 38. 13. Once this is factual position and no liability has been fastened in the process of on going investigation and the incumbent has been asked to appear so that investigation/inquiry may further proceed then by no stretch of imagination it can be said that authority under Section 14 of the Central Excise Act is being misused wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the definition of manufacturer, as such proceedings qua them is unsustainable. In this direction reliance has been placed by the petitioners on the judgment of South Bihar Sugar Mill Ltd. - 1978 (2) E.L.T. J336 (S.C.); Union of India v. Delhi Cloth and General Mills - 1977 (1) E.L.T. J199 (S.C.). In the present case, the issue sought to be raised is not at applicable or attracted for the simple reason that here under the provisions of Central Excise Act, fraudulent Cenvat facility has already been obtained and same has been un-authorisedly utilized for payment of duty on domestic clearances and export of goods on payment of duty and claiming rebate of duty so paid by M/s. Arora Aromatics, and in the said direction investigation is on wherein petitioners are to co-operate. 18. Now coming to the request which has been made in respect of return of the documents and immovable property seized from the petitioners' and to initiate proceedings under Section 22 of the Central Excise Act against all the officers of the Excise Department. Said request of the petitioners cannot be accorded for the simple reason that investigation is still on and has not yet been concluded. Consequently ..... X X X X Extracts X X X X X X X X Extracts X X X X
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