TMI Blog2003 (8) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances. Court should not interfere with the same. In a recent judgment of the Supreme Court reported in 1998 (8) SCC 1 - [Whirlpool Corporation v. Registrar of Trade Marks, Mumbai Ors.] the Supreme Court reiterated the constant view that there is no bar for the writ jurisdiction of the High Court in interfering with any of the disputes but if any bar exists the same is self-imposed. However, in a case of violation of principles of natural justice, fundamental right, vires or when any decision making process or decision is without jurisdiction the Writ Court should interfere with the same. This is such a case where the jurisdiction of the authority is under challenge. 2.At the initial stage, in entertaining the writ petition a Bench of this Court was pleased to take up a prima facie view about the entertainability of the writ. An interim order was passed. By the passage of time long eight years have elapsed. Parties have exchanged their affidavits. Ultimately, it has placed under the heading "old matters" and subsequently under "old adjourned matters" before this Court. 3.Mr. Abhijit Chatterjee, learned Counsel appearing for the petitioner contended that the notice da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Chapter 32 or under Chapter 38 is a matter of determination. In any event, let me see what the judicial pronouncements are speaking in respect of the same. 7.Mr. Chatterjee learned Counsel appearing for the petitioners has cited judgments on four aspects of the matter. Firstly, he has taken the plea that when the demand ex facie barred, the authorities lacks jurisdiction in issuing such notice. Secondly, he took the plea that in the present circumstances the authority cannot take the benefit of proviso. Thirdly, he contended qualification list has already made. Lastly, he has taken the plea that mere mechanical reproduction of the Section under the Act cannot make a substantial ground of show cause unless a case made out to that extent. 8.In paragraphs 27 and 28 of AIR 1961 SC 372 (Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta Anr.) a five Judges' Bench of the Supreme Court held that it is well settled that High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction to avoid lengthy proceedings and unnecessary harassment. In paragraph 27 of 1983 (13) E.L.T. 1342 (S.C.) = AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f excise officer to the factory hence the Department had full knowledge of fact about the manufacture of all goods. The value of clearance of exempted goods was not indicated under the belief that it was not enquired to be indicated. The case for wilful mis-statement, suppression of facts or contravention of any provisions of the Act, is not sustainable and period of limitation available to the Department under Section 11A of the Central Excises and Salt Act is only six months and not five years. From 1989 (43) E.L.T. 195 (S.C.) (Padmini Products v. Collector of Central Excise) I find again that the Supreme Court held that for invoking extended period of five years limitation duty should not had been paid, short-levied or short-paid or erroneously refunded because of either any fraud, collusion or wilful mis-statement or suppression of material facts or contravention of any provision of the Act or Rules made thereunder are essentially ingredients. These ingredients postulate a positive act, therefore, failure to pay duty or take out a licence is not necessary due to fraud or collusion or wilful misstatement or suppression of facts or contravention of any provisions of the Act. Like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omposite units under Item No. 68 of the Excise Tariff, to the extent that it exceeds the period of six months prior to the service of the show came notice must, therefore, be struck down". 11.As against such submissions, Mr. Samir Sengupta learned Senior Counsel appearing on behalf of the Union of India, contended before this Court that the impugned notice cannot be said to be vague. A brief fact of the case is given there. However, from the very beginning of the brief facts I find that the same is reproduction of show cause notice of the self-same issue that payment of duty under Headings being 38.14 and 38.23 as accepted by the Excise Authority will not be appropriate and Chapter Headings 32.08 and 32.09 will be appropriate. Therefore, it is unknown to this Court how the same can be treated as "wilful misstatement" and "suppression of facts". When the fact submission is incorrect legal submission cannot be substantiated on the basis of such wrongful submission. He has drawn my attention to the interim order passed by a Bench of this Court on 28th April, 1995. There I do not find that any such point on the part of the respondents was accepted by such Court. On the other hand, Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y extending the scope without any foundation and Supreme Court and High Courts repeatedly held that such type of notice is bad, it cannot be said that Mr. Sengupta's argument has proceeded towards the true perspective. Therefore, such argument of alternative remedy cannot be accepted at all irrespective of the facts whether the same can or cannot be taken up after entertaining the same at the final stage. That apart, Supreme Court and High Courts on numerous occasions held as above that when six months period will be available for the authority and when the period can be extended for five years. Even two or three such cases placed before this Court are factually similar and the words "suppression of the facts" or "wilful misstatement" are the subject matters. I cannot deviate from such ratio following the same taking an independent view as I have observed at the very beginning of the judgment. 14.Therefore, taking into totality of the matter I am of the view that writ petition should be succeeded and accordingly succeeds. Interim order passed hereunder stands confirmed. Accordingly, the writ petition is disposed of. However, no order is passed as to costs. 15.Prayer for stay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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