TMI Blog2007 (9) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of Chapter- V and VA of the Finance Act, 1994 and the Rules framed there under. The petitioner has also challenged the Annexures-8, 10 and 13 letters issued by the authority to it as replies to the queries and questions raised by the petitioner upon receipt of the summons. For a ready reference, one of the summons dated 14.12.2006 (Annexure-4 to the writ petition) and one of the letters dated 2.3.2007 issued by way of clarification (Annexure-10 to the writ petition) are reproduced below : Writ petition was filed at the time when Annexure-13 letter dated 28.3.2007 was issued to the petitioner in response to the legal notice dated 23.3.2007 (Annexure-12 to the writ petition). In the letter, it was indicated that the investigation being conducted against the petitioner has been approved by the competent authority and that the summons were issued as per the provisions of Section 83 of the Finance Act read with Section 14 of the Central Excise Act, 1944. It was pointed out in the letter that the summons were issued not only for personal appearance, but also for submission of records and documents for the period in question and the failure on the part of the petitioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving himself stated vide the above quoted letter dated 2.3.2007 that the investigating officer is not the appropriate authority to take any decision on the point raised by the petitioner and that the matter is still at the investigating stage and, therefore, it would be premature to presume anything on applicability of the Service Tax on promotion and marketing of online lottery business, the impugned proceeding is not sustainable in law. THE petitioner has also placed reliance on decision of the Apex Court reported in AIR 1999 SC 22 Whirlpool Corporation Vs. Registrar of Trade Marks. THE further case of the petitioner is that since in respect of another region, similar summons have been withdrawn by the respondents with liberty to issue fresh summons according to law, the impugned summons are also required to be withdrawn by the respondents. As against the aforesaid pleas of the petitioner, the respondents in their counter affidavit have questioned the very maintainability of the writ petition on ground of being premature. It is the stand of the respondents that the present enquiry/investigation is being carried out as empowered under Section 14 of the Central Excise Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Act, 1994 and the Rules framed there under. It has been indicated in the summons that the petitioner is in possession of facts and/or documents and/or things which are relevant for the purpose of enquiry. Being empowered by the provisions of the Act, the petitioner has been summoned to appear before the authority along with the documents and to depose. If the petitioner is not in possession of all the documents mentioned in the summons and the letters dated 28.3.2007 (Annexure-13 to the writ petition), it can very well say so before the authority. According to the petitioner, some of the documents are with the Government of Tripura. There is nothing to prevent the petitioner from saying so before the authority which has issued the summons and the impugned letters. In fact, by Annexure-14 letter dated 11.4.2007, the petitioner requested the authority at least 15 days time to arrange the required documents. After assuring the authority in that matter, the petitioner invoked the writ jurisdiction of this Court assailing the very authority of the officer who has issued the summons. It is an admitted position that the present enquiry initiated by the D.G.C.E.I. has been appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds which have been raised in the writ petition can very well be agitated before the investigating agency. Since it cannot be said that the impugned summons and the letters have been issued without jurisdiction, the petitioner is bound to respond to the same by making appearance and produce documents which will advance the investigation so as to come to a prima facie finding as to whether there is any evasion of Service Tax/Contravention of Chapter- V and VA of the Finance Act, 1994. Thereafter, the matter will be adjudicated by issuing show cause notice to the petitioner in which eventuality the petitioner will also get ample opportunity to have its say in the matter. Thereafter also, if aggrieved, the petitioner will have the remedy by way of appeal. Mr. Soni, learned counsel for the petitioner has argued that the investigating authority has also to adjudicate the matter as the proceeding under Section 14 of the Act is a 'judicial proceeding'. Section 14(3) of the Act says that every enquiry under Section 14 of the Act shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code. Section 193 I.P.C. relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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