9911796707
TMI Blog2011 (3) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... unter affidavit is that the matter requires examination and consideration in view of the Larger Bench decision of the Tribunal in the case of Mahindra and Mahindra (2005 (11) TMI 103 - CESTAT, NEW DELHI). The contentions raised by both sides require consideration and debate. The exact nature of activities undertaken and the method and technique involved in the “assembly/manufacture” has to be examined. This necessarily also involves the factual aspect. Thus as in the circumstances it will not be proper to step in and quash the show cause notices at the initial stage. Justification and reason for examination of the case/issue has been indicated in the counter affidavit. - 12604/2009, 2003/2010 - - - Dated:- 15-3-2011 - MR. JUSTICE SANJIV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 22nd November, 2004 which is reported in 2005 (186) ELT 451 (Tribunal Delhi). On a query being made it is revealed that this decision relates to the years 1999-2004. The three impugned show cause notices pertain to the year 2007 onwards. In the counter affidavit filed by the respondent, the respondent has relied upon a Larger Bench decision of the Tribunal in the case of Mahindra and Mahindra vs. CCE, 2005 (190) ELT 30 (Tribunal Delhi)., and it is stated that the earlier decision of the Tribunal, in the case of the petitioner, does not bar and prohibit them from examination of the issue on merits. The petitioner, in the rejoinder, has submitted that the Larger Bench decision in the case of Mahindra and Mahindra (supra) is not applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n indicated in the counter affidavit. 7. Generally, parties are not encouraged to seek writ remedy, if alternative remedy is available. In Whirpool Corpn. Vs. Registrar of Trade Marks, (1998) 8 SCC 1 the Supreme Court pointed out the three contingencies in which writ remedies may be sought namely where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In the present case in view of the observations made above, we are not satisfied that the present case, justifies interference inspite of the alternative remedy. The Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a writ court may interfere even at the stage of issuance of show cause notice if it is issued without jurisdiction or in an abuse of process of law, however, the Supreme Court has asserted that such interference should be rare and not a matter of routine. It has been held in Union of India v. VICCO Laboratories, (2007) 13 SCC 270 :- 31. Normally, the writ court should not interfere at the stage of issuance of show-cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned and to satisfy the authorities concerned about the absence of case for proceeding against the person against whom the show-cause notices have been issued. Abstinence from interf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Excise will examine the said contentions including the judgments relied upon by the petitioner. The contention that the petitioner is registered and paying service tax for the activities of fabrication and erection of wall curtains will also be examined. The Commissioner shall deal with the contention that both service tax and excise duty cannot be levied on the same activity. The Commissioner of Excise will pass a speaking and reasoned order. The petitioner will be at liberty to challenge and question the same, if aggrieved. The petitioner will also be at liberty to apply for stay and if necessary, approach this Court for protection. The observations made in this order are for the purpose of disposal of these writ petitions and will n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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