TaxTMI 
TaxTMI 
2009 (10) TMI 105
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....der or direction in the nature of mandamus commanding the respondents to forthwith return the documents and other movable properties seized from the petitioners premises, both business and residential and not to conduct any further searches or seizures in purported exercise of powers conferred under the Central Excise Act or the Rules framed thereunder. (d) Issue an appropriate writ, order or direction commanding the respondents to initiate proceedings under Section 22 of the Central Excise Act against all the officers of the Excise Department who have been instrumental and conducting searches and seizures in the petitioners' residential and business premises for the past several years. (e) Issue any other appropriate writ, order or direction which this Hon'ble Court may deem just and necessary in the circumstances of the case may also be passed and (f) to allow the writ petition with costs." 2. As issues raised in all three writ petition are identical, request has come forward to treat writ petition No. 10128 (MB) of 2009 as the leading case and to decide all the three writ petitions together on the arguments advanced in leading writ petition. 3. Brief background of the case ....
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....which was on going against Jindal Drugs for evasion of central excise duty and therein petitioners appeared and nothing was found against them. Petitioners have been asked to appear by issuing summons on 17-7-2007 under Section 14 of the Act. Admittedly pursuant to the said summons appearance has not been put in. Thereafter again summons were issued on 24-7-2007 to appear in person on 6-8-2007 and pursuant to the same also petitioners did not appear, and requested for grant of time, which was accorded. Petitioners' have stated that in respect of inquiry against M/s. Ansar Chemical, they have appeared. Again show cause notice was given on 12-9-2007 to appear on 21-9-2008 in respect of inquiry pending for M/s. Ansar Chemicals, to which petitioners claim to have submitted interim reply on 23-5-2009. In this background a team of Central Excise Meerut, Commissionerate made thorough investigation in the matter and after conducting the searches at various places, proceedings under Rule 26 of Central Excise Rules, 2002 have been initiated and show cause notice was given to petitioner of writ petition No. 10128 (MB) of 2009, dated 28-11-2008 alongwith various others. To the said show cause ....
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....s petitioners' do not fall in his territorial jurisdiction notified and as such proceedings in question are liable to be kept in abeyance and said authority be prohibited to proceed in the matter and further as petitioners have been meted with arbitrary treatment in the search and seizures as such requisite relief claimed for be accorded. 6. Countering said submission Sri K.D. Nag, learned counsel appearing for respondent Department contended that in the present case proceedings undertaken under Section 14 of the Act are nothing but investigation and petitioners have been called for to appear and cooperate in ongoing investigation and to state truth and further as genesis of the inquiry in question has started from Sambhal District Moradabad, Commissionerate Central Excise, Meerut has got full authority to deal with the matter and further in the present case truth is required to come out after investigation and on there being substantial reasons to believe, search has been conducted and relevant documents have been taken into custody and as yet investigation is ongoing wherein petitioners are not cooperating as such documents in question cannot be returned and action under Section....
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....ter II-A which deals with indicating amount of duty in the price of goods etc. for purpose of refund and crediting certain amount of the fund. Under the aforesaid Section, it has been provided that any Central Excise Officer duly empowered by the Central Government in this behalf shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making for any of the purpose of this Act. Summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. Under sub-section (2) of Section 14 of the aforesaid Act there is no escape route provided to persons who have been summoned as he is bound to attend, either in person or by an authorized agent, on the direction given by such Officer for making investigation and inquiry and further there is obligation cast upon the person to state truth upon any subject respecting which they are examined or make statements and to produce such documents and ....
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....as been placed on the judgments of Calcutta High Court, Union of India v. Kumar Trading Co. - 2000 (121) E.L.T. 18 (Cal) and Hon'ble Apex Court in the case of Siemens Ltd. v. State of Maharashtra and others reported in 2007 (207) E.L.T. 168 (S.C.) = 2007 (5) S.T.R. 3 (S.C.) = (2006) 12 SCC 33 by contending that exercise which is ongoing same is nothing but misuse of proceeding, as such even at the stage of issuance of show cause notice same can be interfered with in the facts of present case. In the case of Union of India v. Kumar Trading (supra) the goods were covered by Indo Nepal Transit treaty, as such Section 111(o) of the Customs Act was not attracted, consequently there was no occasion to issue any show cause notice, in this background proceedings were held to be without jurisdiction. In the case of Siemens Ltd. (supra), therein the question was as to whether jurisdictional fact existed for issuance of said notice, in the background, when impugned order, as well as statement made clearly reflected that mind qua liability had already been made, and quantification was the issue left which was then not in the realm of show cause notice. 12. Adjudication cannot be compared with....
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.... not been honoured in respect of enquiry of M/s. Arora Aromatics and before that in enquiry fresh material has come on 10-7-2009, for which notices under Section 14 of the Act have been issued on 4-8-2009 and 14-8-2009 respectively. Inquiry which is being undertaken is to be brought to its logical end and in order to facilitate conclusion of said inquiry once action is being taken under Section 14 of the Act then qua the same no fault can be found. 15. Based on the judgment in the case of Thirumala Tirupati Devasthanams and another v. Thallappaka Ananthacharyulu and others reported in (2003) 8 SCC 134 specially paragraph 14 it has been prayed that a writ of prohibition be issued. Facts of the said case are clearly distinguishable, as far as proposition of law is concerned qua the law laid down therein, there is no dispute and doubt of the fact, that Hon'ble Apex Court and High Court has authority to issue writ of prohibition and this is also settled view that a writ of prohibition must be issued only in rarest of rare cases and it is only when (a) proceeds to act without or in excess of jurisdiction (b) proceeds to act in violation of the rules of natural justice, (c) proceeds to ....