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M/s. Data Field India Private Limited (formerly known As Data Field India Ltd) Versus The Commissioner of Central Excise

2018 (2) TMI 821 - MADRAS HIGH COURT

Rectification of mistake - contravention of condition of N/N. 2/95 dated 4.1.1995 readwith EXIM Policy 1997-02 - Held that: - writ against show cause notice is not maintainable. - There is no manifest error in the order impugned before us. Hence, the same is sustained - appeal dismissed as not maintainable. - W.A.No.219 of 2018 and CMP No.1717 of 2018 - Dated:- 1-2-2018 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For Appellant : Mr. K. Jayachandran JUDGMENT ( Order of the Court was made by .....

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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, prohibiting the Commissioner of Central Excise, Coimbatore, from proceeding further with the show cause notice dated 24.04.2002. 2. Though, Mr.K.Jayachandran, learned counsel for the appellant reiterated the grou .....

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batore, to revisit the matter, having regard to the allegations levelled in the show cause notice dated 24.04.2002, we are not inclined to accept the said contentions and it is for the Commissioner of Central Excise, Coimbatore to consider the explanation, if any, to be submitted, furnished by the appellant. 3. At paragraph Nos. 7 & 8 of the show cause notice dated 24.04.2002, Commissioner of Central Excise, Coimbatore, has alleged as follows: "7. From the foregoing facts and circumstan .....

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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 .....

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ordered as hereunder. 21. Thus, going by the facts as reiterated by the petitioner to the Development Commissioner, it has been mentioned in the show cause notice that if the value of the raw materials used for the DTA sales is to be included, the value of 'B' would be the opening balance of raw materials + the raw materials purchased closing balance + the amortized value of capital goods as per the Handbook of Procedures and EXIM Policy, 1997-2002. Thus, the respondent proposed that th .....

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.2/95. 22. It is, therefore, 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 s .....

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nt of duty, the Proviso to Sub-Section (1) of Section 11A of the Act is applicable. Apart from that, there is also a proposal to levy penalty under Rule 173Q of the Rules and Sections 11AC read with 38A of the Act and a liability to pay interest under Section 11AB(1) of the Act. 24. The petitioner's case largely rests upon the decisions, which were cited by the learned counsel. The earliest of such decision being SIV Industries Ltd., and the latest being Sarla Performance Fibers Ltd. One com .....

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decision of the learned Single Judge (as he then was) of this Court, all other decisions of the Hon'ble Supreme Court have been rendered after the respective assessees exhausted the hierarchy of remedies available under the Act. In such circumstances, it has 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 alleg .....

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a situation arises for applying the legal principle. This Court would not have been wholly justified to examine the four decisions cited by the learned counsel for the petitioner as to their applicability or otherwise. However, having been convinced that the impugned show cause notice cannot be treated to be wholly without jurisdiction, this Court has refrained from undertaking such exercise, as it would prejudice the rights of the assessee." 5. Further, writ against show cause notice is n .....

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otice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not h .....

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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 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 whic .....

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