TMI Blog2011 (4) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... terials, the Copper Concentrate are converted into Copper Anodes and the Copper Anodes are despatched to the petitioner's other Unit situated at Chinchpada on job work basis for conversion into Copper Cathodes, rods, etc. For sending Copper Anodes to petitioner's own unit at Chinchpada and Silvassa, the petitioner obtained permission under Rule 4(6) of the Cenvat Credit Rules and one of the conditions of the said permission was that the petitioner should get back the job work challans from the job workers within 180 days and copies of such challans should be produced before the jurisdictional Range Office on fortnightly basis. As the petitioner failed to comply with the said condition, the Range Officer reported the matter to the Central Excise, Tuticorin and the Divisional Central Excise Officer, visited the petitioner's factory on 08.04.2010 and found that the petitioner was not in possession of the challans pertaining to the period from 01.03.2009 to 30.09.2009. 2.According to the respondent, the challans pertaining to the above period were seized at the Madurai Railway Station on 09.04.2010 and therefore, the petitioner has failed to comply with the vital condition viz., no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.9745 of 2010. The learned Senior standing Counsel appearing for the respondents informed the Court that no such untoward incidents had taken place. 5.After the writ petitions viz., W.P.(MD)Nos.8123 and 8135 of 2010 were finally heard on 22.07.2010, orders were reserved. It was further contended that on 23.07.2010 Mr.S.Varadharajan, Vice President (Indirect Tax) of the petitioner's Company was picked up from his office around 8.30 a.m. by the respondents 5 and 6 under the authority of the 3rd respondent and Mr.S.Varadharajan, was detained and that was also reported to this Court on 23.07.2010 at about 2.15 p.m. and Mr.S.Varadharajan was denied the access to have legal assistance and he was produced before the Judicial Magistrate, Tuticorin, for an in-transit custody at 1.00 p.m. on 24.07.2010 and he was remanded till 26th July 2010 and thereafter, publications were made through Media and Press that the petitioner's Company have evaded Rs.750 Crores of customs duty due to serious Advance License Violation and later, Mr.S.Varadharajan was produced before Jurisdictional Economic Offences Court at Madurai and he was remanded to the judicial custody for 15 days and thereafter, sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner's Company and that was evident by his behaviour from 09.06.2010 to 22.07.2010 as stated above and therefore, the proceedings issued by the said Officer viz., the 6th respondent is liable to be quashed on the ground of bias. 11.On the other hand, Mr.B.Vijay Karthikeyan, the learned Senior Standing Counsel appearing for the respondents submitted that the writ petitions are not maintainable and reiterated the averments stated in the preliminary objection filed by the above respondents, in the writ petitions. 12.According to the learned Senior standing Counsel appearing for the respondents, the issuance of show cause notices, which are impugned in the writ petition, have nothing to do with the proceedings viz., W.P.(MD)Nos.8123 and 8135 of 2010 and according to the information gathered by the respondents, there was evasion of Rs.750 Crores of customs duty and therefore, a show cause notice was issued and the Officers have got jurisdiction to issue such notification as per Board's Notification No.31/97-Cus.(N.T), dated 07.07.1997 and therefore, it cannot be contended that the 6th respondent has no jurisdiction to issue the show cause notifications. He, therefore, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 30.06.2004, would make it clear that the earlier Notification No.30 of 1997-Cus(NT), dated 31.7.1997 was only superseded and the Notification No.31 of 1997-Cus(N.T), dated 07.07.1997 was not superseded. Therefore, the 6th respondent is the Authorized Officer, as per the above notification and he is the competent person to issue show cause notices. Hence, the submission of the learned Senior Counsel appearing for the petitioner that the 6th respondent has no jurisdiction to issue notifications cannot be accepted and according to me, the 6th respondent is the Competent person to issue show cause notice. 17.Further, in the judgments reported in 2008(231) E.L.T.397(SC) in the case of Union of India vs. Padam Narain Aggarwal, the Hon'ble Supreme Court upheld the power of the Customs Officers to issue summons and held that the power to issue summons to elicit truth from a person examined and that cannot be challenged. It is further held that that the power to arrest a person by the Customs Officer is statutory in character and that cannot be interfered with. 18.Further, in the judgment reported in 2007(212)E.L.T.165(SC) in the case of Commissioner of Customs, Calcutta vs. M.M.Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the concerned authorities is the normal rule. However, the said rule is not without exceptions. Where a Show Cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the Writ Court would not hesitate to interfere even at the stage of issuance of show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out. " 21.Further, in the judgment reported in (2004) 3 SCC 440 in the case of Special Director another v. Mohd. Ghulam Ghouse another, the Hon'ble Supreme Court held as follows:- "This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the show cause which was issued by a competent person. 25.Further, I am unable to accept the contention of the learned Senior Counsel appearing for the petitioner that the officials are biased against the petitioner's Company by reason of their behaviour alleged against them towards Mr.S.Varadharajan from 09.06.2010 to 22.07.2010. 26.According to me, except the affidavit filed by Mr.S.Varadharjan about the alleged incident that took place inside the High Court premises wherein he was threatened by the 6th respondent that he would put him in jail, there is no other material available to infer that there is bias in issuing the show case notice. Further, the same was denied by the learned Senior standing Counsel appearing for the respondents in Court and actions were taken by the 6th respondent for violation of statutory provisions and therefore, the allegations of bias cannot be taken into consideration when the action was taken as per the provisions of law for having violated statutory provisions. 27.In W.P.(MD)No.9744 of 2010, the petitioner prayed for a writ of Mandamus directing the 1st respondent to appoint appropriate Officer to conduct enquiry and the prayer was ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
