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2011 (8) TMI 327 - HC - Central ExciseConversion of vehicles into ambulance - manufacture - writ petition against show cause notice - the petitioner claimed that he is undertaking an activity which is classified as service and, therefore, the entire action including search operations and proceedings thereafter are illegal. - held that - Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. - writ petition dismissed.
Issues Involved
1. Legality of the search and seizure conducted by the Central Excise Department. 2. Whether the conversion of base vehicles into ambulances constitutes "manufacture" under the Central Excise Act, 1944. 3. Jurisdiction of the Delhi High Court to entertain the writ petition. 4. Appropriateness of invoking writ jurisdiction under Article 226 of the Constitution in taxation matters. Detailed Analysis Legality of the Search and Seizure The petitioner, M/s. Bafna Healthcare Pvt. Ltd., argued that the search and seizure conducted by the Central Excise Department, Faridabad, were illegal and unconstitutional. They sought a writ of certiorari to quash the search warrant, seizure memo, panchnama, summons, and other related documents, claiming these actions violated principles of natural justice and were arbitrary and discriminatory. The respondents, however, maintained that the search and seizure were conducted in accordance with the law to investigate alleged excise duty evasion. Conversion of Base Vehicles into Ambulances The core issue was whether the conversion of base vehicles into ambulances by the petitioner constituted "manufacture" under Section 2(f) of the Central Excise Act, 1944, thereby attracting excise duty. The petitioner contended that this activity did not amount to manufacture and was merely a service, already subjected to service tax. Conversely, the respondents argued that the conversion process fell under the definition of "manufacture" as per the Central Excise Tariff Act, 1985, specifically Note-6 of Section XVII, which states that converting an incomplete article into a finished one constitutes manufacture. Jurisdiction of the Delhi High Court The respondents raised the issue of territorial jurisdiction, arguing that since the search operations and the factory premises were located in Faridabad, the Delhi High Court might not have jurisdiction. The petitioner countered that they had an office in Delhi, and the billing was done from there, thus involving the jurisdiction of the Delhi High Court. The court noted that the matter had been pending since 2010 and chose not to delve deeper into the jurisdictional issue at this stage, leaving it open for future consideration if the petitioner approached the court again. Appropriateness of Invoking Writ Jurisdiction The court referred to several precedents, including Whirpool Corporation vs. Registrar of Trade Marks and Union of India vs. Hindalco Industries, emphasizing that writ jurisdiction under Article 226 should not be exercised in taxation matters at the show-cause or initial stages unless there is a clear lack of jurisdiction or an infringement of fundamental rights. The court highlighted that the petitioner should respond to the show-cause notice and exhaust alternative remedies provided under the statute before approaching the High Court. The court cited cases like Special Director v. Mohd. Ghulam Ghouse and U.P. State Spg. Co. Ltd. v. R.S. Pandey, underscoring that writ petitions should not be entertained when statutory remedies are available, unless exceptional circumstances are demonstrated. Conclusion The Delhi High Court dismissed the writ petition, stating that it had not expressed any opinion on whether the activities of the petitioner constituted manufacture or whether excise duty was payable. This determination would be made by the respondent authorities during the course of proceedings under the Central Excise Act. The petitioner was advised to avail appropriate remedies in accordance with the law if dissatisfied with the outcome of the proceedings.
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