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2018 (2) TMI 821

o 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 S. Manikumar, J. ) Writ appeal is 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 2 .....

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ollows: "7. From the foregoing facts and circumstances, it appears that M/s.DIL had contravened the conditions stipulated under Notification No.2/95 dated 4.1.1995 readwith EXIM Policy 1997-02 in as much as they furnished incorrect details to MEPZ and obtained approval for clearance of goods to DTA sales and the following provisions of the erstwhile 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 th .....

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e for concessional rate (50% of the customs duty) under Notification No.2/95 dated 04.1.1995 for effecting sales in the DTA, since there should be a minimum of 10% of NFEP in order to effect the DTA clearance at concessional rate as per paragraph 9.5 of the EXIM Policy, 1997-2002 read with Notification No.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 .....

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n the case of Norton Intec Rubbers (P) Ltd., which is a 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 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 .....

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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 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 participa .....

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y rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter." 6. In view of the above 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 .....

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