TaxTMI 
TaxTMI 
2007 (7) TMI 215
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....opper cable scrap and copper lead cable scrap, imported from outside India. They were availing of exemption of duty from import under the Export Promotion Policy. On receiving an intelligence report that the first petitioner indulged into undervaluation and clandestine removal for evasion of customs and excise duty, the officers of the Department of Revenue Intelligence (DRI), New Delhi, raided the premises of the first petitioner on 24-8-2004. They seized the computers and various other voluminous records of the first petitioner. 6. At the time of the search, statement of one Shri Vinay Jain, partner of the first petitioner, was recorded under Section 108 of the Customs Act. Shri Vinay Jain, partner of the first petitioner, is stated to have admitted that the first petitioner had resorted to undervaluation of the imported goods but the data contained on the four computers appeared to be deleted prior to submission to the DRI and the same were got scanned with the help of special software from the computer, claimed to be in the presence of Shri Vinay Jain and Shri Satish Bhalla. The data was scrutinised in their presence and the data contained incriminating documents including e....
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..../records which have not been relied upon may be returned to the party under proper receipt. The assessee may also be allowed to obtain photocopies of the documents relied upon. The above measures would help substantially reduce the time taken by the party for inspection of seized documents." 12. The petitioner also relied upon a subsequent circular of the Central Board of Excise and Customs, dated 8-9-2006 which states, in clause 2 thereof, as follows. - "In this regard your attention is invited to the Board's Circular No. 42/88-CX, dated 24-5-1988 and No. 48/88-CX6, dated 10-6-1988. As per these circulars, the documents/records which are not relied upon in the show cause notice are required to be returned under proper receipt to the persons from whom they are seized. I wish to reiterate compliance of these instructions. In fact, the show cause notice itself may incorporate a clause that unrelied upon records may be collected by the concerned persons within 30 days of receipt of the show cause notice. The designation and address of the officer responsible for returning the relied upon records should also be mentioned in the show cause notice." 13. It is their case th....
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....the respondents that many such documents are sometimes required for other investigation and the first circular dated 2-2-1996, relied upon, merely stated that such documents may be returned. It does not say that they shall be returned. In any case, the respondents are ready to make available the photocopies of such non-relied documents and they relied upon three such letters of 23-6-2006, 29-1-2007 and 9-2-2007. They also relied upon the fact that it is recorded that the petitioners have collected copies of the non-relied documents may be after the passing of the order, i.e., on 7-3-2007. 19. Mr. Rawal, learned senior counsel, appearing for the petitioners, submitted that the petitioners were seriously prejudiced in their defence. The circular is very clear that non-relied documents are to be returned. They may not be relied upon by the Department but are relevant for the petitioners to file the reply. It was submitted that they had to be returned in original. In any case, specific averment was made in paragraph 13 of the petition that the petitioners were directed to collect the relevant documents on a working day for the first time by letter dated 5-2-2007 and instead of twice....
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....d discretion on the part of the High Court as laid down in A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and another, 1983 (13) E.L.T. 1327 (Tribunal) = AIR 1961 SC 1506. Again, as held by the Apex Court, in exceptional circumstances, certiorari may be issued notwithstanding that statutory remedy is not exhausted. This is held in Collector of Monghyr and others v. Keshav Prasad Goenka and others, AIR 1962 SC 1694. 26. In the present case, the petitioner is relying upon the circulars of the Central Government. In any case, they are binding on the Department, as held by the Apex Court in Collector of Central Excise, Vadodara v. Dhiren Chemical Industries, 2002 (139) E.L.T. 3 (see para 9). 27. From the last part of para 4 of the impugned order, it is clear that on 26-2-2007 the petitioner did point out that a petition was being filed, as stated in that order, though the petitioners are contending that they informed the respondent no. 2 that the petition had already been filed. In any case, even if we accept what is recorded in that order, the respondent no. 2 could have adjourned the matter to await the direction of the Court, which was expected t....