TMI Blog2007 (12) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. However, the appellant is hereby given time upto 21-1-2008 to file their objections if any to the impugned show cause notice with relevant supporting materials, if they are so advised and thereupon it is for the respondent to proceed further in accordance with law. - 421 of 2005 - - - Dated:- 20-12-2007 - K. Raviraja Pandian and Chitra Venkataraman, JJ. Mr. Sriram Panchu, Sr. Counsel for Mr. T. Mohan for the appellants. Mr. V. T. Gopalan, Addl. Solicitor General for Mr. T. S. Sivagnanam, SCCG, for the Respondent. JUDGMENT [Judgment per K. Raviraja Pandian, J.]- In this writ appeal, the appellant assailed the order of the learned single Judge dated 29-1-2005 made in W.P. No. 17263 of 2001. 2.The appellant filed the said writ petition seeking for the relief of writ of prohibition prohibiting the respondent from proceeding further in relation to show cause notice No. 13/2001, dated 3-7-2001. 3.The learned single Judge by reason of the impugned order dismissed the writ petition with liberty to file detailed reply within a period of two weeks from the date of receipt of copy of that order and further directed the respondent to proceed further on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanges were incorporated in the Tariff Headings by substituting them with new notification attaching certain conditions thereto. In terms of the notification dated 16-3-1995, the appellants are disentailed from availing the exemption benefit in respect of the cropped grey fabrics. The exemption has been made available only in those cases where the manufacturer did not have the facilities for carrying out bleaching, dyeing or printing with the aid of power or steam. The appellant in order to avoid payment of duty and to avail exemption cleared the fabrics subjected to the process of cropping, by mis-declaring the same as grey fabrics and not subjected to any process, if the contention of the appellant is right that they are entitled to the benefit of the notification, it is open to the appellant to clear the cloud cast upon them before the authorities concerned. 6.We heard the argument of the learned counsel on either side and perused the materials on record. 7.The appellant, being manufacturer of threads and textiles, unprocessed and processed varieties of cotton fabrics, and man-made fabrics for home consumption and export, is coming within the purview of Central Excise Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence upon which they intend to rely in support of their defence. The appellant was also required to file the reply within thirty days from the date of receipt of the notice. 8.The above said notice is put in issue in the writ petition on the premise that the entire issue as stated in the show cause notice has been settled in favour of the appellant in the decision of the Supreme Court in Mafatlal Fine Spinning and Manufacturing Company Limited v. The Collector of Central Excise reported in 1989 (40) E.L.T. 218 and Indore Wire Company Limited v. Union of India reported in 2006 (203) E.L.T. 179 (S.C). 9.The decision on which much reliance has been placed by the appellant i.e., 1989 (40) E.L.T. 218 to contend that the respondent has no jurisdiction to issue the show cause notice was one that was filed before the Supreme Court under Section 35L of the Central Excises and Salt Act, 1944 against the common appellate order of the Customs, Excise Gold (Control) Appellate Tribunal made in properly laid appeal in which it was found that in respect of the deferred duty on yarn, the appellant therein was liable to pay interest at 3 percent of the duty under Rule 49A(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court by invoking Article 226 without facing the charges has been dealt with by the Apex Court in several cases and in all those cases, the appellant was directed to go before the authorities and place the facts. The Supreme Court in the case of Union of India and others v. Tata Engineering Locomotive Co. Ltd., etc., [1997 (96) E.L.T. 209 (S.C.) = AIR 1998 Supreme Court 287], in more or less comparable facts, to the defence that the issue is decided in favour of the appellant therein, held as follows : In our view, this writ petition should not have been 4. entertained by the High Court at all. The Assistant Collector is entitled to complete the assessment as he thinks fit in exercise of his judgment and according to his understanding of the law and facts. For this purpose, he can call for and examine whatever documents he considers relevant, if the Assistant Collector fails to follow any judgment of the High Court or this Court, the assessee had adequate statutory remedies by way of an appeal and revision against the assessment order. The court should not try to control the mode and manner in which an assessment should be made, if the Assistant Collector is of the view that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ens Limited v. State of Maharashtra and other reported in 2007 (207) E.L.T. 168 (S.C.) = 2007 (5) S.T.R. 3 (S.C.) = (2006) 12 S.C.C. 33 has held that ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a show cause notice unless the same inter alia appears to have been without jurisdiction. In the case on hand, the jurisdiction of the authority, who issued the notice, as already stated, cannot be questioned, as he is very much vested with the power to issue the show cause notice. But in the Siemens case, the writ petition was maintained on the ground that the parties have pre-determined the issue. 14.in the case of State of H.P. and others v. Gujarat Ambuja Cement Limited and another reported in judgment today 2005 (6) S.C. 298 also, the Supreme Court in unequivocal terms has held that when a person approaches the High Court without availing the alternative remedy, the court ought to ensure that he has made out a strong case or there exist good grounds to invoke the extraordinary jurisdiction, where under a statute, there was an allegation of infringement of fundamental rights or when on the undisputed facts the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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