TaxTMI 
TaxTMI 
2010 (12) TMI 826
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.... in the nature of Mandamus directing and commanding the respondent to from giving effect or further effect and/or acting on the basis of the purported show cause notices dated 22nd November, 2007 and 17th September, 2008 until the disclosure of all the documents concerning the testing of samples by the said two Government agencies any further in any manner whatsoever. (c) A writ of or in the nature of Certiorari directing and commanding the respondents, each of them, their subordinates and officers to transmit the records relating to the case so that appropriate directions as may be found just and proper by the said Hon'ble Court, may be given; (d) Rule NISI in terms of prayers above; (e) Injunction restraining the respondents and each of them, their subordinates and officers from proceeding against the petitioners in connection with the purported show cause notices dated 22nd November, 2007 and 17th September 2008 till the disclosure of all documents including the test reports to the petitioners any further in any manner whatsoever; (f) Ad-interim order in terms of prayer above; (g....
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....material available with the department, there is no question of suppression of the facts and if there is no suppression of the facts, then the very jurisdiction to initiate proceedings against the petitioners is not available to the respondents and therefore the notices are bad in the eye of law and in this regard the petitioners placed reliance on a Supreme Court decision decided in the matter of Larsen & Toubro Ltd. v. Commissioner of Central Excise, Pune-II, 2007 (9) SCC 617 = 2007 (211) E.L.T. 513 (S.C.) wherein the Hon'ble Supreme Court has held that - "...............Acts of fraud or suppression, it is well settled, must be specifically pleaded. The allegations in regard to suppression of facts must be clear and explicit so as to enable the noticee to reply thereto effectively. It was not the case of the Revenue that the activities of the appellant were not known to it. Admittedly, when the first show-cause notice was issued, the extended period of limitation was not resorted to. A notice should ordinarily be issued within a period of six months (as the law then stood) i.e. within the prescribed period of limitation but only in exceptional cases, the said period could be ex....
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....rt passed in the case of Densons Pultretaknik v. Commissioner of Central Excise, (2003) 11 SCC 390 = 2003 (155) E.L.T. 211 (S.C.) wherein it is held that - ".................whether the Tribunal was justified in invoking the first proviso to sub-section (1) of Section 11A. Prima facie, it is apparent that there was no justifiable reason for invoking a larger period of limitation. There is no suppression on the part of the appellant firm in mentioning the goods manufactured by it. The appellant claimed it on the ground that the goods manufactured by it were other articles of plastic. For the insulating fittings manufactured by it, the tariff entry was correctly stated. The officers concerned of the Department, as noted above, after verification approved the said classification list. This court has repeatedly held that for invoking an extended period of limitation under the said provision duty should not have been paid, short-levied or short-paid by a suppression of facts or in contravention of any provision or rules but there should be wilful suppression. (Re : Easland Combines v. CCE). By merely claiming it under Sub-Heading 3926.90 it cannot be said that there was any wilful miss....
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....ion of facts in writ jurisdiction and this can only be investigated at the level when the reply is filed and the petitioners join issue before the department. Investigation of facts in a writ jurisdiction is not known to the law and therefore this writ option is misconceived. 10. Learned counsel for the respondents has further urged that at the time when the matter was being enquired into by the department, one of the officers working with the petitioners, who was supervising production process, has said that the coaltar was never heated by him at a temperature less than 350° C and the product, which the petitioners have sought to pass on, was the product which can only be produced if the coaltar is heated at 100° C and therefore there was a patent misrepresentation on the part of the petitioners that in his self assessment he passed on the product as dehydrated coaltar and in that view of the matter, since there was a patent misrepresentation on the part of the petitioners the department had the jurisdiction to issue the notices because on such misrepresentation, if the department does not issue notices to the erring parties, then it derelicts its duties and that der....