TMI Blog2010 (12) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... f notice. It would not in fitness in observing against the department that it has no jurisdiction to issue the notices. The petitioners would be at liberty to go before the department and join issue there. - Petition dismissed. - 977 of 2010 - - - Dated:- 1-12-2010 - Bhagwati Prasad, C.J. and Pradeep Kumar, J. REPRESENTED BY : S/Shri Binod Poddar, Sr. Advocate, Darshana Poddar, Deepak Sinha, Piyush Poddar and Vikash Pandey, Advocates, for the Petitioner. Shri P.K. Prasad, Sr. Advocate and Ms. Ruby Parween, Advocate, for the Respondent [Order]. Heard learned counsel for the parties. 2. The present writ petition has been filed by the petitioners who are manufacturers of carbon compounds with the following prayers :- (a) A writ of and/or in the nature of Mandamus directing and commanding the respondent to provide the petitioners the copy of all the documents concerning the forwarding of samples by the Respondents to two government agencies and the test reports issued against the same by the said agencies more fully referred to in the show cause notice dated May 9, 2007 in such time and manner as may be permitted by the said Hon ble Court. (b) A writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the petitioners and in that view of the matter the Commissioner had extended time for the issuance of show cause notices under Section 110(2) of the Customs Act, 1962. The Commissioner while deciding this, has taken note of all the materials on record. The argument of the learned counsel for the petitioners is that this order of the Commissioner having not been assailed by the respondents, operates as issue estoppel against the respondents and therefore they are stopped by the orders of the Commissioner and therefore no such notices could have been issued and in that view of the matter, the notice issuing authority lacks jurisdiction in law and it was legal mala fide. The learned counsel for the petitioners further submits that he has demanded the report of the chemical analyst but that has not been supplied to him and therefore there is material suppression on account of the respondents and when there is material suppression, the show cause notices cannot be sustained. Further argument of the learned counsel for the petitioners is that once when there is no sufficient material available with the department, there is no question of suppression of the facts and if there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not include the value of the exempted goods which they manufactured at the relevant time. The Tribunal found that explanation was plausible, and also noted that the department had full knowledge of the facts about manufacture of all the goods manufactured by the respondent when the declaration was filed by the respondent. The respondent did not include the value of the product other than those falling under T.I. 14-E manufactured by the respondent and this was in the knowledge, according to the Tribunal, of the authorities. These findings of the Tribunal have not been challenged before us or before the Tribunal itself as being based on no evidence. In that view of the matter and in view of the requirements of Section 11A of the Act, the claim had to be limited for a period of six months as the Tribunal did. We are, therefore, of the opinion that the Tribunal was right in its conclusion. The appeal therefore fails and is accordingly dismissed 6. Learned counsel for the petitioner also placed reliance on another judgement of the Supreme Court passed in the case of Densons Pultretaknik v. Commissioner of Central Excise, (2003) 11 SCC 390 = 2003 (155) E.L.T. 211 (S.C.) wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted thought and a delayed action on the part of the petitioners though they conceived the filing of petition in 2009 and awaited up to 2010. This itself puts the petitioners in a position where their own stand appears to be shaky and the challenge is delayed and it suffers from delay and laches. 9. The argument of the learned counsel for the respondents further is that the notices can only be challenged on account of lack of jurisdiction or lack of authority. None of these points have been urged, argued, pleaded or pressed at the time of arguments. The only argument which has been placed at the service is that the notices have been issued without there being sufficient material and that the Commissioner had already held against the respondents and therefore stopped by the orders of the Commissioner. Therefore, the defence of the petitioner is not liable to be considered at this stage and these things can only be considered as the defence of the petitioners and the same cannot be considered as this constitutes investigation of facts in writ jurisdiction and this can only be investigated at the level when the reply is filed and the petitioners join issue before the department. Inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the rival submissions and we are of the considered view that in view of the Supreme Court decision in the matter of Commissioner of Customs and Central Excise v. Charminar Nonwovens Ltd., 2004 (167) E.L.T. 372 (S.C.) wherein the Hon ble Supreme Court considered that there was an earlier decision and yet in subsequent matters the notices were issued. The Hon ble Supreme Court was of the view that such notices can be issued and not liable to be challenged under Article 226 of the Constitution of India. In view of the findings of the Hon ble Supreme Court in its decision, the argument of the learned counsel for the petitioners that by the decision of the Commissioner the issue had already been settled and it operates as issue estoppel, does not stand to reason because doctrine of issue estoppel does not apply in this case. It was argued before us and since we have a direct decision of Hon ble Supreme Court which says that under Article 226 of the Constitution of India, the matter should not be gone into in investigation of facts. We think that the argument of the learned counsel for the petitioners regarding the issue estoppel is not sustainable. The further argument of the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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