2018 (2) TMI 821 - HC - Central Excise

Rectification of mistake - contravention of condition of N/N. 2/95 dated 4.1.1995 readwith EXIM Policy 1997-02 - Held that - writ against show cause notice is not maintainable. There is no manifest error in the order impugned before us. Hence, the same is sustained - appeal dismissed as not maintainable.

Summary

Issues:
1. Challenge against the order of the writ Court declining to issue a writ of prohibition.
2. Allegations in the show cause notice dated 24.04.2002 regarding contravention of conditions stipulated under Notification No.2/95 and EXIM Policy 1997-02.
3. Consideration of factual and legal contentions in response to the show cause notice.
4. Maintainability of a writ against a show cause notice.

Analysis:
1. The writ appeal challenged the order of the writ Court that declined to issue a writ of prohibition against the Commissioner of Central Excise, Coimbatore, from proceeding with the show cause notice dated 24.04.2002. The appellant contended that as per the EXIM policy 1997-2002, necessary permissions were obtained, and all details were furnished before the Development Commissioner. However, the Court held that it is for the Commissioner to consider the explanation to be submitted by the appellant, and the writ of prohibition was declined.

2. The show cause notice alleged contravention of conditions under Notification No.2/95 and EXIM Policy 1997-02. The notice accused the petitioner of furnishing incorrect details and obtaining approval for clearance of goods to DTA sales. Allegations included clearing goods without discharging appropriate duties and claiming ineligible exemptions. The Court noted these allegations and emphasized that the factual issues must be agitated before the Adjudicating Authority.

3. The Court emphasized the importance of responding to show cause notices and participating in the adjudication process. It cited legal precedents discouraging interference with show cause notices at early stages, highlighting the need for the authority to consider submissions before making a final decision. The Court directed the appellant to reply to the show cause notice, raising all factual and legal contentions within 30 days, and the respondent was instructed to afford a personal hearing to the appellant's representative.

4. The judgment also addressed the maintainability of a writ against a show cause notice. Legal precedents emphasized that writ jurisdiction is discretionary and should not be exercised to quash a show cause notice unless it is wholly without jurisdiction or illegal. The Court dismissed the writ appeal as not maintainable, emphasizing the need for the appellant to engage in the adjudication process rather than seeking writ remedies prematurely.

In conclusion, the High Court upheld the order of the writ Court, directing the appellant to respond to the show cause notice and participate in the adjudication process. The judgment highlighted the importance of engaging with the authorities and refraining from seeking writ remedies prematurely, in line with established legal principles and precedents.