TaxTMI 
TaxTMI 
2015 (11) TMI 321
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....tral Excise, Tirunelveli, to furnish copies of the documents on issue wise in a separate cover and directing the same authority to consider the preliminary issue whether the petitioner is ex facie entitled to exemption under Notification Nos.63/95 dated 16.03.1995 and 4/2006 dated 01.03.2006, have been overlooked, he pleaded. 2. Adding further, he would submit that the petitioner being a mining company, all activities carried on in a mine are entirely exempted from the levy of central excise as per Notification Nos.63/95 dated 16.03.1995, while so, knowing this fact fully well the respondents on earlier occasion had issued a show cause notice dated 26.12.2014 calling upon the petitioner to show cause as to why the products viz., Ilemenite, Zircon, Rutile, Sillimanite, leucoxene manufactured out of sea sand (ore) and cleared the same during the period from 01.03.2011 to 31.03.2014 should not be classified as concentrates of Ilemenite, Zircon, Rutile, Sillimanite, leucoxene under chapter sub heading 26140020, 26151000, 26060090 and 26140090 of CETA respectively, while similarly situated persons are granted exemption. The petitioner being a mining company alone cannot be treated di....
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.... representation of the petitioner to decide first the jurisdictional issue as per the decision in Management of Express Newspapers (Private) Ltd., Madras vs. The Workers and others reported in AIR 1963 SC 569, however, these two directions were omitted to be complied with. On the other hand, as per the direction given by this Court when the petitioner appeared before the Assistant Commissioner of Central Excise, Tirunelveli, to receive the documents and asked for the Laboratorty Analysis Reports and Test Certificates showing that the materials taken from the petitioner are analysed and found to be 'ore' or 'concentrate' and also the copy of the order passed by the Customs Department on the very same identical issue, proof of export of minerals, copies of documents which were relied on to arrive at the conclusion about the related entities under Section 4(3)(b) of the Act, some of the aforesaid documents were refused, because, the department only gave one huge bunch of invoices and asked the petitioner to search through them, such approach has failed to serve the purpose. The reason is, he pleaded, if a specific invoice is said to give rise to a charge of underinvoic....
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.... the levy of central excise vide Notification No.63/95 dated 16.03.1995, it is incumbent on the part of the 1st respondent to decide first whether the petitioner is entitled to the said exemption, because once it is found that the petitioner is entitled to exemption under Notification No.63/95 dated 16.03.1995, then the respondents will ceaze to have jurisdiction and the show cause notice and consequent enquiry cannot exist, hence, a request has been made raising a preliminary issue to decide whether the petitioner comes within the purview of Mines Act and hence entitled to exemption under Notification No.63/95. This jurisdictional issue has already been decided by the Apex Court in Management of Express Newspapers (Private) Ltd., Madras vs. The Workers and others reported in AIR 1963 SC 569 holding that jurisdiction issue must be decided first as they go to the root of the matter, however, the respondents deliberately knowing fully well that there has been a direction issued by this Court on 08.07.2015 to furnish copies of documents on issue-wise in a separate cover and also to decide the preliminary issue, have miserably failed to adhere to the aforesaid directions, therefore, th....
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....ence against the aforementioned Raja Climax in a criminal proceedings for which the said Raja was threatened by the respondents. On noticing the same, the petitioner wrote another complaint to the higher authorities and subsequently filed Crl.O.P(MD)No.22538 of 2013 against the said Raja Climax for a direction seeking expeditious action against the 2nd respondent. The 2nd respondent in order to harass the petitioner initiated the present proceedings, therefore, the petitioner has impleaded the 2nd respondent in his personal capacity. 9. He further submitted that the petitioner is having 8 plants located at different places where waste sand is separated from the mineral-rich beach sand and these plants are therefore 'mines' as defined in Section 2(1)(j) of the Mines Act, 1952. This apart, 4 of the plants are located within the lease area itself while others are located within the environs of the lease area, hence, the notification No.4/2006 exempts all processes with respect to ores from the levy of central excise. 10. Continuing his arguments, learned counsel for the petitioner would submit that admitted position of the petitioner's plants as mines could be very w....
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....26151000, 26060090 and 26140090 of CETA respectively, within 30 days from the date of receipt of the notice to give their explanation. The petitioner challenging the said show cause notice filed W.P(MD)No.3316 of 2015 to quash the same on the ground that the respondents have pre-determined the issue. This Court refusing to accept the plea by order dated 10.03.2015 dismissed the writ petition and directed the petitioner to give their explanation to the show cause notice before the respondent on receipt of the relevant documents which are relied on in the show cause notice with a further direction to the respondent to furnish the petitioner all the documents relied on in the show cause notice. 12. Denying the allegation that Raja Climax is having close relationship with the 2nd respondent/Commissioner of Central Excise Tirunelveli, it is further submitted that the said Raja Climax being Superintendent the 2nd respondent, normally, there is a relationship between them as superior and the subordinate only, therefore, the allegation of the petitioner attributing mala fide against the respondent that the show cause notice is issued wilfully without any basis, he pleaded, is far from a....
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....l the adjudication proceedings initiated in the show cause notice dated 26.12.2014. 16. Continuing his arguments, he would submit that when the respondents have not mentioned anywhere in the show cause notice about the Laboratorty Analysis Reports and Test Certificates, supply of the same are unwarranted. For the aforesaid reasons, he prayed for dismissal of the writ petition. Heard the learned counsel for the parties and perused the materials available on record. 17. During the hearing of W.P(MD)No.3316 of 2015, the department has taken a stand that they will make the document requested by the petitioner for ready and hand over the same. In view of that, this Court while dismissing the writ petition on the ground that no writ petition will lie against the show cause notice, directed the respondent to furnish all the relevant documents which are relied on in the show cause notice. Subsequent thereto, the petitioner has given a representation on 20.07.2015 giving the details of the documents requested and also making out a prayer for deciding the preliminary issue. On receipt of the same, the respondent issued another letter dated 20.07.2015 which is given as under:- ....
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....iven a representation dated 01.04.2015 to the respondents giving the details of the documents to be furnished as per the order passed on 10.03.2015 and sent a reminder on 05.05.2015, however all of a sudden, to their surprise, the impugned letter dated 12.05.2015 was issued informing the petitioner that it is not reasonable to call for the documents which are not cited as relied upon documents in the show cause notice, on that basis, the petitioner was asked to submit his explanation, hence, the petitioner came to this court challenging the impugned communication dated 12.05.2015 raising two issues that in spite of a specific direction given by this court on 10.03.2015 in W.P(MD)No.3316 of 2015 to furnish all the relevant documents which are relied on in the show cause notice, the respondent failed to furnish the same, as a result, the petitioner is neither able to give reply nor able to raise the basic and preliminary issue whether the Central Excise Department has jurisdiction to assess and levy central excise from the petitioner in view of notification No.63/95 granting full exemption to the petitioner's mine from the application of the Act. 20. In regard to the question ....
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....nsidered by the respondent and shall be furnished to the petitioner. The petitioner shall appear before the authority on 20.07.2015 and the authority concerned shall hand over the documents as stated supra. It is also open to the authority concerned to consider the representations of the petitioner, if there are no legal impediments. 5. Post the case on 03.08.2015 for further hearing." 21. Therefore, the interim order passed by this Court dated 08.07.2015 is bound to be complied with for the following reasons:- A careful perusal of paragraph 2 of the interim order dated 08.07.2015 makes it clear that unless and until the preliminary issue as well as the merits of the matter are decided, there will not be any finality. In compliance with this directions, the respondents also in their counter affidavit have taken a stand that they are willing to furnish the documents required by the petitioner. 22. In this regard, it is relevant to extract the following portion from paragraph 6 of the counter affidavit filed by the 2nd respondent which is given as under:- "The main issue in this writ petition is about serving of the relied upon documents for which the depar....
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....ty. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principles is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess. It was further observed: "76.The existence of jurisdictional fact is thus sine qua non or condition precedent for the exercise of power by a court of limited jurisdiction." "..... A wrong decision on 'fact in issue' or on 'adjudicatory fact' would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present." 20. This principle was reiterated in Carona Ltd., v Parvathy Swaminathan & Sons [(2007 8 SCC 559] and in Ramesh Chandra Sankla v. Vikram Cement, [(2008) 14 SCC 58]. Applying the above principles enunciated by the Honourable Apex Court to the case on hand, we have no hesitation....
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...." 26. The issue viz., whether the petitioner firm is brought under the purview of the Mines Act, has already been adjudicated by competent courts and became final:- Applying the above ratio in the present case, it has become necessary to decide the preliminary issue for the simple reason that all the units of the petitioner have already become subject matter of judicial decision holding that they are coming within the definition of 'mine' in the judgment of the Principal Subordinate Court at Tirunelveli in O.S.No.144 of 2010 dated 27.06.2012 and again in the judgment of Chief Judicial Magistrate, Tirunelveli, in C.C.No.114 of 2007 and also in the judgment of the ESI Court at Tirunelveli in ESIOP.No.8/2012 that the petitioner comes under the purview of the Mines Act and their activities are mining activity, hence, it is necessary for the respondents to decide the preliminary issue whether the petitioner is entitled to exemption under Notification Nos.63/95 dated 16.03.1995 and 4/2006 dated 01.03.2006 for the reason that para 17(11) of the notification states that 'mine' has meaning given in Section 2(i)(j) of the Mines Act, 1952 and as per Section 2(i)(j) the w....