TMI Blog1991 (8) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner is one of the share-holders of the first petitioner Company. It is alleged in the affidavit filed in support of the writ petition that the said factory of the petitioner company was set up in 1987 and the production of cigarettes in the said factory commenced in February 1987, that the first petitioner company has been duly complying with all the laws and rules relating to the Central Excise in respect of the operation of the said factory and that on an average the first petitioner Company pays an amount of Rs. 1.2 crores per month on account of duties of Central Excise to the Central Government, under the Central Excise Act, 1944. It is further alleged that the Superintendent of Central Excise and four Inspectors of Central Excise Department are permanently posted in the said factory, that the factory operates in three shifts and that during all the three shifts at least one officer of the Central Excise Department used to be present in the factory and maintain a watch and check on the various operations in the said factory. The main raw materials required for the manufacture of cigarettes are processed Cut Tobacco and that as the first petitioner Company does not have fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating to the said losses and submitted a report to the then Collector. The first petitioner was not furnished with a copy of the said report. The first petitioner was issued with a show cause notice dated 6-12-1989 and according to the petitioners, the main charges in the show cause note are as follows : "a(i) On a verification of stock conducted on 24-6-1989 certain shortages were found in the stock of Cut Tobacco, Winnowings, Ripped Tobacco and Tobacco Dust. (ii) On the basis of the said allegation the Company has been charged for improperly accounting Cut Tobacco as Winnowings, Ripped Tobacco, Dust and Floor Sweepings and for having clandestinely manufactured and removed without payment of duty a total quantity of 24.94 million cigarettes. (iii) The above charge is also sought to be supported by certain figures relating to consumption of shells and slides (in which cigarettes are packed). b(i) Certain cigarettes sold to Suvarna Filter and Tobacco Products Ltd., Salem were not covered by any Gate Pass. (ii) On the basis of the said allegation the Company has been charged for having clandestinely removed a total quantity of 46.80 million cigarettes." It is alleged in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested by the first petitioner and permit the cross-examination of those persons, and the first petitioner submitted before the first respondent that the case of the first petitioner would be severely prejudiced and handicapped by the absence of the evidence of the persons whose cross- examination was requested by the first petitioner and that no useful purpose would be served by proceeding in the matter without such evidence. Thereupon, the first respondent closed the proceedings and informed the first petitioner that the first respondent would proceed to make his final order in the matter. After the said hearing, a letter dated 19-7-1991 was addressed to the first respondent, which is marked as Annexure "M". The petitioners allege that on the facts and circumstances of the case, the first respondent is proceeding with the adjudication of the case arising out of the notice in grave and flagrant violation of the principles of natural justice especially when the first petitioner wanted to cross-examine the persons whose evidence, according to the petitioners, is relevant and material, and without such evidence, the matter cannot be adjudicated fairly and properly and the first respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished such a list to the first respondent but without giving any reason whatsoever, the first respondent rejected the request of the first petitioner for cross-examination. It is stated that the first respondent is intending to proceed in the matter by ignoring and shutting out relevant evidence and material and has prejudged the notice on the basis of extraneous and irrelevant considerations and it is in grave and flagrant violation of the principles of natural justice and such proceedings constitute an unreasonable restriction on the rights of the petitioners to carry on busines and to hold property and such proceedings violate the rights of the petitioners under Articles 14,19 and 300A of the Constitution of India. In paragraph 20 of the affidavit filed in support of the writ petition it is stated that on 18-7-1991, when the hearing was held, the first respondent disallowed the first petitioner's request to summon and cross-examine the persons named by the first petitioner, the first petitioner had to tell the first respondent that no useful purpose would be served by proceeding further in the matter and thereupon the first respondent closed the proceedings and informed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners in extenso. 7. Mr. K.K. Venugopal, learned senior counsel, refers to various documents especially Annexures K, L and M and points out that in spite of the request of the petitioners for cross-examination of the persons named by the petitioners, the first respondent has proceeded with the adjudication rejecting the request of the petitioners and contends that once the first respondent has accepted the request of the petitioners for cross-examination in the course of the hearing on 25-3-1991 and wanted a list of the broad topics which would be covered by cross-examination but, however, subsequently the first respondent rejected the request of the petitioners during the next hearing. This, according to the learned senior counsel, is an arbitrary decision on the part of the first respondent and if the first respondent passes an order or proceeds with the adjudication without cross-examining the witnesses named by the petitioners, it will be a violation of the principles of natural justice. The learned senior counsel further contends that the petitioners have got a right to examine the witnesses and the first respondent ought to have informed the petitioners whether the first re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here a writ of prohibition should be issued considering the facts of the case where the first respondent has reserved the orders in violation of the principles of natural justice. 9. I have considered the arguments of Mr. K.K. Venugopal, learned senior counsel appearing for the petitioners and also gone through the affidavit, additional affidavits and various typed sets filed in this case including the show cause notice and the various letters written by the petitioners to the first respondent. After giving my serious consideration over the matter, I am of the view that a writ of prohibition shall not lie on the facts and circumstances of this case. First of all, this is a case where, according to the affidavit, the petitioners themselves refused to argue the case on merits without cross-examining the list of witnesses given by them. Apart from that, it is clear from the affidavit that orders have been reserved by the first respondent. When the proceedings have come to an end before the first respondent and orders alone have to be pronounced, I am of the view that this Court cannot re-open the proceedings by any method by issuing any writ, more so, when the petitioners are seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nial to him of a particular right." So it cannot be put as a wide proposition that whenever cross-examination has been refused, it will be a violation of the principles of natural justice. In my view, on the facts and circumstances of this case, this Court cannot presume that the first respondent is going to pass an adverse order on the basis of the show cause notice and the explanation given by the petitioners. Though the learned senior counsel foresees, that there will be an adjudication against the petitioners, just for that, this Court cannot presume so. Apart from that, in my view, a writ of prohibition should not be issued in such a case where the adjudication proceedings is over and this Court should not interdict with the proceedings. The case referred to by the learned senior counsel reported in S. Govinda Menon v. Union of India and Another (A.I.R. 1967 S.C. 1274) deals with the principles for the issue of a writ of prohibition. In that case, the Supreme Court was concerned with a writ petition filed by a member of the Indian Administrative Service against certain disciplinary proceedings taken against him. The Supreme Court affirmed the judgment of the Kerala High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings were rightly instituted under Rule 4(l)(b) of the All India Services (Discipline and Appeal) Rules 1955. In that case, the Supreme Court was not concerned with the proposition with regard to the cross-examination of witnesses in adjudication proceedings. In S. T. Adityan and Others v. The First Income-Tax Officer, City Circle IV, Madras. 10 (ILR 1964 Madras 700 -1964 II MLJ 113), A division Bench of this Court was considering a batch of writ petitions filed by a daily newspaper from proceeding further with the enquiry commenced under Section 34 of the Indian Income-tax Act for certain assessment years. The Division Bench at page 119 observed as follows : The scope of a writ of prohibition is fairly clear. A writ of prohibition is an instrument of judicial control to prevent an excess or abuse of jurisdiction by inferior tribunals. Where a tribunal assumes or threatens to assume a jurisdiction which it does not possess prohibition may issue so long as the proceedings are not complete. Prohibition also lies for a departure from rules of natural justice. If the presiding officer of the inferior tribunal is interested in the lis, or is other wise biassed he can be restrai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1947 observed as follows at page 1903, paragraph 26 :- "(26) The first question is whether the petition filed by the appellants under Art. 226 of the Constitution for the issue of a writ in the nature of prohibition is main tainable in the circumstances of the case. A writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise, Mackonochie v. Lord Penzance, 1881 AC 424 and Halsbury's Laws of England, Vol. 2,3rd Edn." Here also, it is a question of jurisdiction and it was held that the Customs Authorities have no jurisdiction to proceed under Section 167 of the Sea Customs Act. In Y. Narayana Chetty and Another v. The Income-tax Officer, Nellore and Others (AIR 1959 S.C. 213), it has been held that a writ of prohibition cannot be issued since the contention raised by the petitioners do not raise any question of jurisdiction. The Supreme Court further observed as follows (at page 219, paragraph 12) : "... All that the appellants would be able to argue on this ground would be that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many proceedings quite within the competence of such authorities, or which may be ultimately found to be comprised in the jurisdiction, maybe stifled at the outset. We do not think that that would be the proper province of the exercise of the power of this court to issue this writ under Art. 226 of the Constitution...." Again, a learned single Judge of this Court in an unreported decision m Paramakudi Bus Transports (P) Ltd., Paramakudi v. The Regional Transport Authority, Tamanathapuram at Madurai and Others (W.P. Nos. 764 and 765 of 1966 dated 20-7-1966) considered the decisions in Veluswami v. Raja Nainar (A.I.R. 1959 S.C. 422) and Thansingh v. Superintendent of Taxes (A.I.R. 1964 S.C. 1419) aad Taj Mahal Transports (P) Ltd. v. Secretary, Regional Transport Authority, Tirunelveli (A.I.R, 1966 Madras 8) and held that a writ of prohibition should not be issued. In Seervai's Constitutional Law of India, Third Edition, Vol. II, regarding "Right to Judicial Remedies, at page 1225, paragraph 16.80, the scope of writ of prohibition has been considered. At page 1119 in paragraph 16.467, it is stated that if the proceedings of the Tribunal have been terminated, it is too late to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1991 etc., will have any relevance to the present case. Here is a case where the order has not been passed. As such the unreported judgments of the Bombay High Court are clearly distinguishable both on facts and law. Having regard to the decision's referred to above and the position of law with regard to the issue of a writ of prohibition, I am fully satisfied that this not a case where a writ of prohibition should be issued at this stage of the proceedings. 11. That apart, Chapter VI-A of the Central Excises and Salt Act, 1944, as it stands to-day, provides for statutory appeals against any order passed. Section 35B provides for an appeal to the Appellate Tribunal. Section 35F provides for the deposit of duty demanded or penalty levied pending appeal and the proviso to this section enables the appellate authority to consider the case and empowers the appellate authority to dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interest of revenue. Section 35G privides for drawing up a statement of case for reference by the Appellate Tribunal to the High Court. Section 35L provides for further appeal to the Supreme Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive remedy by way of an appeal to the prescribed authority, a second appeal to the Tribunal and thereafter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Art. 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. Art. 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Art. 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Art. 226 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
