2007 (12) TMI 227 - HC - Central Excise

Writ jurisdiction - relief of writ of prohibition seeked prohibiting the respondent from proceeding further in relation to show cause notice No. 13/2001, dated 3-7-2001 - Held that - In this case, as already stated, so many violations, which are factual in issue, have been alleged against the appellant and the appellant was only required to submit his explanation to the alleged violations, it is not expected a writ Court on the basis of an affidavit and counter affidavit, resolve the disputed questions of fact. Furthermore, what is impugned is only a show cause notice calling upon the petitioner to submit its reply. It is not a final determination. The respondent would have very well dropped the proceedings, if the cause to be shown by the petitioner are well founded. Hence, we are not able to appreciate the argument of the learned counsel Mr. Sriram Panchu that the appellant need not undergo the ordeal of replying to the show cause notice. Thus there is no point merit consideration in the writ appeal and the writ appeal is dismissed. However, the appellant is hereby given time upto 21-1-2008 to file their objections if any to the impugned show cause notice with relevant supporting materials, if they are so advised and thereupon it is for the respondent to proceed further in accordance with law.

Issues Involved:
1. Whether the process of cropping of grey fabrics amounts to manufacture under Section 2(f) of the Central Excise Act, 1944.
2. Jurisdiction of the respondent to issue the show cause notice.
3. Appropriateness of invoking Article 226 of the Constitution to challenge the show cause notice.
4. Requirement to exhaust alternative remedies before approaching the High Court.

Detailed Analysis:

1. Whether the process of cropping of grey fabrics amounts to manufacture under Section 2(f) of the Central Excise Act, 1944:
The appellant argued that the process of cropping grey fabrics does not amount to manufacture as per the Supreme Court's decision in Mafatlal Fine Spinning and Manufacturing Company Limited v. The Collector of Central Excise (1989 (40) E.L.T. 218). The appellant contended that the learned single Judge should have prohibited the respondents from proceeding further based on this settled issue.

2. Jurisdiction of the respondent to issue the show cause notice:
The respondent, represented by the Additional Solicitor General, argued that the learned single Judge was correct in directing the appellant to respond to the show cause notice. The respondent contended that the issue involved adjudication of disputed questions of fact, which should be addressed by the authorities concerned. The appellant, being a manufacturer with facilities for bleaching and dyeing, was alleged to have mis-declared cropped fabrics as unprocessed to avail exemption from duty. The respondent maintained that they had the jurisdiction to issue the show cause notice based on the materials gathered, and the appellant should present their case before the adjudicating authority.

3. Appropriateness of invoking Article 226 of the Constitution to challenge the show cause notice:
The Court emphasized that rushing to the High Court under Article 226 without responding to the show cause notice is not appropriate. The Supreme Court in Union of India v. Tata Engineering & Locomotive Co. Ltd. (1997 (96) E.L.T. 209) held that the High Court should not interfere at the stage of show cause notice or assessment, as the assessee has adequate statutory remedies. The Court reiterated that the appellant should place all materials, including Supreme Court decisions, before the respondent and, if necessary, appeal against the respondent's decision.

4. Requirement to exhaust alternative remedies before approaching the High Court:
The Court highlighted that the appellant should have availed alternative remedies before approaching the High Court. The Supreme Court in State of H.P. v. Gujarat Ambuja Cement Limited (2005 (6) S.C. 298) and other cases has held that the High Court should not entertain writ petitions when alternative remedies are available unless there are compelling reasons. The Court noted that factual issues alleged against the appellant should be resolved by the authorities, and the High Court should not decide these issues based on affidavits.

Conclusion:
The Court dismissed the writ appeal, stating that the appellant should file their objections to the show cause notice with relevant materials by 21-1-2008, and the respondent should proceed further in accordance with law. The Court emphasized that the appellant must exhaust alternative remedies and present their case before the adjudicating authority rather than invoking Article 226 prematurely.

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