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TMI Blog2012 (11) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... d questions of facts. We are unable to uphold merely on the basis of affidavits that the Excise authorities transgressed their authorisation and searched and seized materials or documents from outside of the premises of M/s. MGM Metallisers Ltd. From the affidavits filed by the respondents,there was considerable material to prima facie hold a belief that central excise duty evasion was being carried out by the group of companies led by M/s. MGM Metallisers Ltd. whose Director was Shri Nagindas Kapadia. In his case also, a separate search authorisation was issued - Under the circumstances in absence of any illegality pointed out to the authorisation of search and in absence of any foundation for examining allegations of personal mala fide, all the petitions must fail - Same are accordingly dismissed. - Special Civil Application No. 2503, 2472 & 2473 of 2012 - - - Dated:- 24-9-2012 - Akil Kureshi And Harsha Devani, JJ Appellant Rep. by : Mr. Hasit Dilip Dave Respondent Rep. by : Mr. R. J. Oza, Mr. N. M. Kapadia JUDGEMENT Per : Akil Kureshi, J : 1. These petitions arise out of common background. They have been heard together and would be disposed of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court, respondent authorities have appeared and filed replies opposing the petitions and prayers made therein. 3. Learned counsel Shri Dave for M/s. MGM Metallisers Ltd. submitted that the search was without any authorisation in law. No search warrant was produced at the time of search. 3.1) Counsel further submitted that entire search warrant was even otherwise without legal basis. M/s. MGM Metallisers Ltd. had closed down its manufacturing activities many years back. No authorisation for search could therefore, have been issued against such a non-existing defunct entity. Counsel further submitted that there was no authorisation for search insofar as MGM Metallisers India or M/s. Frenylon Industries were concerned. In the alternative, counsel submitted that there was no basis for issuing such authorisation for search. He submitted that the entire authorisation was thus without any basis. 3.2) Counsel also submitted that the search and further operations were being carried out wholly mala fide. During the search no incriminating material was found. Only out of vendetta, the Excise authorities made totally false panchnama. 4. Learned counsel Shri Kapadia appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2008 (223) ELT 26 (Guj.), wherein Division Bench of Gujarat High Court quashed the search operation of income tax authorities finding that permitting such inquiry would amount to sheer harassment. The Court in this context made following observations : "13. In the aforesaid backdrop of facts and circumstances of the case, it is apparent that the entire exercise commencing from issuance of the first summons dated 4-10-2004 is either only with a purpose to create record of having made an inquiry, or for some other collateral purpose, which need not be spelt out at this juncture. Whatsoever may be the reason, the end result is sheer harassment and mal treatment to the partners of the petitioner firm at the hands of respondent no.3. Even if one accepts that the same is as a consequence of lack of knowledge of respondent NO.3, once the relevant details containing the entries of sales and purchase right from 1-4-2002 till the day prior to the seizure of the books was available with the Department nothing further was required from the petitioner or its partners, and whatever exercise had to be carried out had to be done by respondent No.3 on his own analysis and reading of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the parties and having perused the voluminous record of the case, at the outset we may record that though strenuously both the learned advocates appearing for the petitioners have made submissions with respect to mala fides, there is nothing on record to permit us to examine such contentions. Firstly, in none of the petitions any of the petitioners have made any personal allegations of mala fide against any of the Central Excise authorities. None of the authorities have been named in the petitions who according to the petitioners were driven by personal grudge so as to victimise the petitioners through search operations. Additionally, we also notice that none of the officers of the Excise department have been joined in the personal capacity in any of these petitions. In absence of any foundation for pressing the ground of personal mala fide, it is not possible for us to uphold any of the contentions in this regard. To reiterate though orally several statements were made before us by the counsel for the petitioners that only to harass the petitioners and their family members, Central Excise authorities carried on search operations, no specific allegations against any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To Shri Kuldeep Singh, Intelligence Officer, DGCEI, RO, Vapi. Whereas an information has been laid before me which is considered to be reliable and due enquiry having been made thereupon, I have reason to believe that goods liable to confiscation and documents relevant to the proceedings under the Central Excise Act, 1944 are secreted in the business/residential premises detailed herein below : Shri Naginbhai T. Kapadia, M/s. T.N.Kapadiya Group of Industries, Street No.1,Ghamalwad, Opp Gangeshwar Mahadev Temple, Salabatpura, Surat. 395003. Now, therefore, in exercise of the powers conferred upon me under Section 105 of the Customs Act, 1962, made applicable to Central Excise vide Government of India (Ministry of Finance) Notification No.68/63-CE dated 04.95.1963 (as amended) issued under section 12 of the Central Excise Act, 1944, I authorise and require you to search the above premises with such assistance as may be necessary for the said goods or documents and/or any other things relevant to the proceedings, under the said Act, and if found, to seize and produce the same forthwith before me for further disposal under the Central Excise Act, 1944 and rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that entire search itself was invalid or without authorisation. 11. Further contention of the petitioner that premises of M/s. Frenylon Industries. was also searched without authorisation, also cannot be accepted. It is the case of Central Excise authorities that certain raw materials/finished products belonging to M/s. Frenylon Industries was found from the premises of M/s. MGM Metallisers Ltd. These are highly disputed questions of facts. We are unable to uphold merely on the basis of affidavits that the Excise authorities transgressed their authorisation and searched and seized materials or documents from outside of the premises of M/s. MGM Metallisers Ltd. 12. From the affidavits filed by the respondents, we notice that there was considerable material to prima facie hold a belief that central excise duty evasion was being carried out by the group of companies led by M/s. MGM Metallisers Ltd. whose Director was Shri Nagindas Kapadia. In his case also, a separate search authorisation was issued. 13. Under the circumstances in absence of any illegality pointed out to the authorisation of search and in absence of any foundation for examining allegations of personal mala f ..... 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