TMI Blog2018 (2) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... directed against the order made in W.P.No.34663 of 2003 dated 05.10.2017, by which the writ Court, after considering the submissions of the learned counsel for the petitioner, decisions of the Hon'ble Supreme Court in (i) SIV Industries Ltd. Vs. Commissioner of Central Excise Customs [reported in 2000 (117) ELT 281]; (ii) Virlon Textile Mills Ltd. Vs. Commissioner of Central Excise [reported in 2007 (211) ELT 353]; (iii) Sarla Performance Fibers Ltd. Vs. Commissioner of Central Excise [reported in 2016 (336) ELT 577]; and (iv) Commissioner Vs. Ginni International Ltd. [reported in 2007 (215) ELT. A102]; and a decision of this Court in the case of Norton Intec Rubbers (P) Ltd. Vs. CCE, Madras, declined to issue a writ of prohibition, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile Central Excise Rules 1944 (C.E.R.) which are enforceable in terms of Section 38A of the Central Excise Act, 1944 (C.E.A.) a) Rule 9(1) and 173 F readwith proviso to section 3(1)(b) of CEA: In as much as they had cleared the goods in question without discharging appropriate amount equal to the aggregation of the duties of customs which is leviable on the same. b) Rule 173 B: In as much as the assessee claimed ineligible exemption under notification No.2/95 dated 4.1.95 for clearance of the goods to DTA. 8. As the assessee had furnished incorrect details to MEPZ and got approval for clearance of DTA sales, it appears that they had indulged in wilful mis-statement of the relevant facts, by an act of fraud with an apparent i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, alleged that the petitioner made irregular DTA sales during the year 1997-98. The respondent proceeded to state that the petitioner appears to have contravened the conditions stipulated in Notification No.2/95 read with the EXIM Policy, in as much as they furnished incorrect details to the MEPZ and obtained approval for clearance of goods to the DTA and the provisions of Rules 9(1) and 173F of the Central Excise Rules read with Proviso to Section 3(1)(b) of the Act stand attracted, in as much as they cleared the goods in question without discharging the appropriate amount equal to the aggregate of the duties of customs, which are leviable on the same. Rule 173B of the Rules also stands attracted in as much as the petitioner claimed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be seen as to whether the petitioner should be permitted to stay away from the proceedings and seek for a Writ of Prohibition. 25... 26... 27... 28. Bearing in mind the above legal principle, if the case on hand is examined, the allegation against the petitioner being one of irregularity in the availment of concession under the DTA sales furnishing inflated export sales, is purely a factual issue, which has to be agitated by the petitioner before the Adjudicating Authority. Whether or not there has been inflation and whether the respondent was justified in arriving at the actual NFEP at 3.95% is correct or otherwise, has to be thrashed out before the Adjudicating Authority. After the factual scenario becomes clear, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought not have interfered with the show cause notice. (ii) The Supreme Court in Special Director v. Mohd. Ghulam Ghouse reported in 2004 (3) SCC 440, at paragraph 5, 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 enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove discussion and decisions, we are of the view that there is no manifest error in the order impugned before us. Hence, the same is sustained. Writ appeal is dismissed as not maintainable. As directed by the writ Court, appellant is directed to reply to the show cause notice dated 24.4.2002 within a period of 30 days from the date of receipt of a copy of this order, raising all the factual and legal contentions in support of their stand. On receipt of the reply, the respondent shall afford an opportunity of personal hearing to the authorized representative of the appellant/petitioner, commence and conclude the adjudication process as expeditiously as possible. No costs. Consequently, the connected Civil Miscellaneous Petition is closed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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