TaxTMI 
TaxTMI 
2005 (3) TMI 18
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....Excise in exercise of powers and functions, inter alia, under the provisions of the Act issued six show cause notices to the petitioners alleging that in the course of audit of M/s. G.T.C. Industries Ltd. (G.T.C.), a tobacco manufacturing company, the petitioners after having examined relevant documents deliberately certified the books of account of G.T.C. to be true and correct in spite of noticing removal of more than one consignment of cigarettes under different invoices bearing same serial number and different delivery challans also bearing same serial number but paid central excise duty for one consignment of cigarettes removed under one set of documents out of the above. It is, thus, alleged that the first petitioner had, prima facie, dealt with the excisable goods, which they were knowing and had reason to believe, are liable for confiscation under the Act or the said Rules, consequently the petitioner-firms have rendered themselves liable for penal action under Rule 209A of the said Rules. 4. The aforesaid show cause notices (six numbers) issued to both the petitioner-firms carrying similar allegations and charges are subject matter of challenge in these petitions filed ....
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....rt but the respondents were injuncted from proceeding with the show cause notices. In his submission, all the notices are liable to be quashed and set aside. He submits that the respondents cannot be allowed to proceed with adjudication of defective notices. He took us through the contents of the notices to demonstrate as to how they do not answer the essential requirements of Rule 209A of the Rules. Statutory Provisions: 8. Before proceeding to consider the rival submissions of the parties it will b profitable to have a glance at the statutory provisions applicable to the facts of petitions. Section 9(1)(bbb) of the Act reads as under: "9. Offences and penalties. - (1) Whoever commits any of the following offences, namely :- (a) … … … (b) … &nb....
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....sued by a statutory authority relying upon some facts, the said notice can be challenged before the Writ Court only on the ground that even if the facts are assumed to be correct no case has been made out against the noticee. If a prima facie case has been made out in the show cause notice, it is for the adjudicating authority to finally decide all the questions including the questions of fact. It has also been laid down in series of cases by the Supreme Court that the High Court should not interfere at the stage of show case notice to take over the fact finding investigation which is to be resolved by fact-finding authorities constituted under the relevant statute. In a series of recent cases, the Supreme Court has taken the aforesaid view. Some reported cases are : State of Goa v. Leukoplast (India) Ltd. [1997 (92) E.L.T. 19 (S.C.) = AIR 1997 SC 1875]; Union of India v. Polar Marmo Agglomerates Ltd - 1997 (96) E.L.T. 21 (S.C.) and Union of India v. Bajaj Tempo Ltd. - 1997 (94) E.L.T. 285 (S.C.). In State of U.P. v. Labh Chand - AIR 1994 SC 754, the Supreme Court befittingly illuminated the power as under: "When a statutory Forum or Tribunal is specially created by a statute fo....
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....t can be said that even if the facts stated in the notices are assumed to be correct; no case has been made out against the notices. In other word, can it be said that a prima facie case has been made out in the show cause notices. If yes, then, it is for the adjudicating authority to finally decide all the questions including the questions of fact. 14. Let us now, turn to the text of the statutory provisions to answer the questions raised hereinabove. The proper dissection of the Statutory provisions categorically demonstrate that the basic requirement is that the person charged must deal with the excisable goods either by acquiring possession thereof or by transporting, or by concealing or selling or purchasing or in any other manner dealing with it with the knowledge or with a reason to believe that the goods dealt with by him are liable for confiscation under the Act or the Rules. 15. With the above understanding of statutory provisions, let us turn to the show cause notices at hand. The relevant text of one of the specimen notices is reproduced hereinbelow :- OFFICE OF THE COLLECTOR OF CENTRAL EXCISE, DELHI ROOM NO. 273, C.R.BUILDING, I.P. ESTATE, NEW DELHI. C.N....
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....bsp; … 6. In view of the foregoing, it appears that: (i) … … … (ii) … … … (iii) … … … (iv) … …  ....
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.... or Rule 209A of the Rules while discharging their professional duties. The cases at hand are the cases wherein the show cause notices are absolutely without jurisdiction muchless they do not make out any case of any of the noticees having dealt with the excisable goods with specific knowledge so as to stand to the test of either Section 9(1)(bbb) of the Act or Rule 209A of the Rules as such each show cause notice, in our opinion, is non est and liable to be quashed and set aside. 17. The additional material sought to be produced by way of additional affidavit to supplement show cause notices cannot be used to remove the defects of the show cause notices. it is needless to mention that when the statutory functionary makes an order based on certain grounds, its validity is required to be judged by reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise as held by the Apex Court in the case of Mahendrasing Gill v. Chief Election Commissioner - AIR 1978 SC 851. This settled principle of law is applicable with little greater force to the show cause notice because each allegation made in the show cause notice is required to be replied s....