TMI Blog2011 (8) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1956 has its registered office in Mumbai. On 20th November, 2009, Central Excise, Faridabad conducted a search at their factory at Faridabad and documents and records like sale invoices, purchase invoices, balance sheets etc. were seized for further investigation. 2. The allegation of the Central Excise Department, Faridabad is that the petitioner No.1 is manufacturing ambulances after receiving base vehicles/delivery vans at Faridabad and earlier they were manufacturing ambulances at Gurgaon. It is alleged that this manufacturing activity is exciseable and the petitioner No.1 is guilty of evasion of excise duty of Rs.3.30 crores tentatively. 3. The case of the petitioner No.1 is that the conversion of vehicles into ambulances is not manufacturing and, therefore, no excise duty is payable. It is stated that the petitioner No.1 has an office at N-114, Panchsheel Park, New Delhi and is registered with the service tax authorities in Delhi and the centralized registration for service tax was granted vide certificate of registration dated 28th April, 2008. 4. In the writ petition, the following prayers have been made:- (i) to issue writ of certiorari of other appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court may deem fit and proper having regard to the facts and circumstances of the case. 5. It is stated in the writ petition that on 20th November, 2009, 116 vehicles were found by the Superintendent of Central Excise (Anti-evasion), Faridabad. Four vehicles which were already duty paid were allowed to be cleared, but the remaining 13 vehicles in finished condition were directed to be treated as dutiable and seized vide panchnama dated 20th November, 2009. Remaining 99 vehicles were not in a fit/finished condition to be taken and were not seized, but an oral direction was given that these vehicles should not be cleared without payment of excise duty. The seized vehicles were subsequently released on conditions/payment. Statement of employees/directors of the petitioner No.1 company was recorded and Manu Jain, a director of the company was arrested. 6. In the writ petition various factual details of how the matter has proceeded and the respective stands of the petitioner No.1 and Excise Department have been stated. 7. The whole edifice of the case built by the petitioner No.1 is that the process of conversion of the base vehicle unit, on which excise duty has already been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1 company at Faridabad amount to manufacture at the very initial stage. It will not be correct to say that the present case is one where there is ex-facie inherent lack of jurisdiction. The respondent-Excise Department, Faridabad is entitled to examine and go into the question whether or not activities undertaken by the petitioner No.1 company amount to manufacture or not. The Act confers jurisdiction on the said authority to decide the said question. 10. It may be noticed that the respondent has raised the question of territorial jurisdiction as the search operations were conducted at Faridabad and the factory premises of the petitioner No.1 company are also located at Faridabad. However, the case made by the petitioner No.1 is that they have office at Delhi and the billing is done from Delhi. It is noticed that in the writ petition it has been stated that the respondent Nos.1 to 4 function under the supervision of the Chief Commissioner, Central Excise, C.R. Building, I.P. Estate, New Delhi and the petitioner No.1 had approached the said authority. This, by itself, may not confer jurisdiction on this Court to entertain this writ petition, unless there was involvement and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted. 13. In U.P. State Spg. Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264, it has been explained that the High Court should not entertain writ petitions unless something in the case goes to the root of the jurisdiction. When and in what circumstances writ jurisdiction should be exercised at the initial stage was examined and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in consequence of an error of law. 19. After all the above discussion, the following observations of Roskill, L.J. in Hanson v. Church Commrs. may not be welcomed but it should not be forgotten also: There are a number of shoals and very little safe water in the unchartered seas which divide the line between prerogative orders and statutory appeals, and I do not propose to plunge into those seas.... 20. In a catena of decisions it has been held that writ petition under Article 226 of the Constitution should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out. 21. In U.P. State Bridge Corpn. Ltd. v. U.P. Rajya Setu Nigam S. Karamchari Sangh it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. To same effect are the decisions in..... . 14. In anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant‟s counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum. 33. Reference may be made to the Constitution Bench decision of this Court rendered in Thansingh Nathmal v. Supdt. of Taxes, which was also a decision in a fiscal law. Commenting on the exercise of wide jurisdiction of the High Court under Article 226, subject to self-imposed limitation, this Court went on to explain: 7. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain another Constitution Bench of this Court in Mafatlal Industries Ltd. v. Union of India speaking through B.P. Jeevan Reddy, J. delivering the majority judgment, and dealing with a case of refund of Central excise duty held: 77. So far as the jurisdiction of the High Court under Article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. In the concluding portion of the judgment it was further held: (Mafatlal Industries Ltd. case,) (x) The power under Article 226 is conceived to serve the ends of law and not to transgress them. 37. In view of such consistent opinion of this Court over several decades we are constrained to hold that even if the High Court had territorial jurisdiction it should not have entertained a writ petition which impugns an order of the Tribunal wh ..... 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