TMI Blog2015 (6) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... unction. Merely because the show cause notice does not contain a specific word that these are all prima facie findings, the petitioner cannot be heard to say that the respondent has decided the issue once for all and the notice is issued only as a ritual. It is not as if the order passed by the respondent is final. The Central Sales Tax Act contains hierarchy of authorities, in case final order is passed by the respondent by rejecting the explanation. The petitioner is also having a remedy of appeal before the High Court. The respondent has not determined the liability so far. The materials collected by the respondent to fix the liability are disclosed in the show cause notice. Those materials were disclosed only with a view to enable the petitioner to submit its reply - Neither the materials disclosed in the show cause notice nor the statement made in the counter-affidavit would go to show that the respondent has already applied its mind and has formed a definite opinion with regard to the violation committed by the petitioner. - petitioner has not made out a case for quashing the statutory proceedings - Decided against assessee. - W.P. (MD) No. 4296 of 2014 and M.P. (MD) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund the amount or adjust it towards duty. The Investigating Authority was directed to complete the investigation and issue show cause notice thereafter. The said order was challenged by the petitioner in W.A. (MD) No. 339 of 2014. The Writ Appeal was allowed by the Division Bench, by judgment dated 30 April, 2014 and a Mandamus was issued to the respondent to refund the amount, within a period of four weeks. 5. The respondent, in the meantime, issued a show cause notice to the petitioner, pursuant to the order in W.P. (MD) No. 2026 of 2013. The petitioner submitted its reply to the show cause notice. The petitioner, thereafter, filed this Writ Petition challenging the show cause notice. 6. The petitioner has taken up a contention that the respondent has already decided to pass an order as indicated in the show cause notice. Therefore, it is a futile exercise to submit to the jurisdiction of the respondent. 7. The respondent through its Assistant Commissioner of Central Excise, filed a counter-affidavit. According to the respondent, Customs Department conducted preliminary investigation. The investigation prima facie revealed that the petitioner had availed input credit ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers or manufacturers. The petitioner, having paid duty on these inputs, is entitled to duty exemption on final products. The petitioner has been availing input credit based on the invoices showing purchase of materials, like Re-rollable scrap, defective HR Steel plates, Sec HR Steel plates, etc. 11. The investigation in respect of the alleged violation of Cenvat Credit Rules, 2004 by the petitioner commenced, by inspecting its premises by the Anti-Evasion Squad of Central Excise on 18 September, 2012. 12. The petitioner, in the affidavit filed in support of the Writ Petition, contended that the officials and the representatives of the Management were all subjected to humiliation and under coercion and threat, a sum of ₹ 7.53 crores was illegally collected from them. The respondent, on the other hand, contended that it was a voluntary payment. According to the respondent, the petitioner wanted return of certain documents and as a condition precedent, a sum of ₹ 7.53 crores was deposited. It is not necessary to consider the legality of the action taken by the respondent with respect to the amount collected, in view of the order passed by the Division Bench. 13. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have very well withheld those information, in which case, the petitioner would come to know of these materials only from the final order passed after enquiry. The disclosure of information in the show cause notice is now taken as a ground to challenge it under the pretext that it reflects the pre-determined mind. The findings found in the show cause notice are all tentative in nature. The respondent made it very clear that these materials were collected during the time of investigation. All those materials are now furnished to the petitioner. It is for the petitioner to deny each of these statements and thereafter, to submit its defence. In case the respondent failed to disclose the materials collected during the time of investigation and called upon the petitioner to submit its reply merely by saying that they have falsely claimed Cenvat credit, the petitioner, while challenging the final order, would very well contend that they were prevented from submitting an effective reply, on account of non-disclosure of relevant information and the failure to furnish relevant materials. 18. The learned Senior Counsel for the petitioner has taken up a contention that even in the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice, the respondent has very clearly indicated that the petitioner is liable to pay the amount shown therein and as such, the notice though termed as a show cause notice is actually a final order determining liability. I am not inclined to entertain the said argument for more than one reason. 23. The respondent in a very fair manner disclosed all the materials collected during the course of investigation. Nothing was withheld. In case an argument of this nature is entertained that by giving details of the violations and the evidence collected in the show cause notice as well as in the counter-affidavit, no purpose would be served by submitting to the jurisdiction of the statutory authority none of the authorities, exercising jurisdiction under various Statutes and more particularly, under the Central Excise Act, would be in a position to discharge the statutory function. Merely because the show cause notice does not contain a specific word that these are all prima facie findings, the petitioner cannot be heard to say that the respondent has decided the issue once for all and the notice is issued only as a ritual. It is not as if the order passed by the respondent is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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