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TMI Blog2012 (11) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... the Managing Director may be dispensed with, with permission to the Assessing Officer to take a decision subsequently and if necessary, then to summon the Managing Director himself. It is also made clear that in case, the Assessing Officer proceeds to summon any of the witnesses of the company, he need not to record any reason and may summon any witness. - W.P. (T) No. 6556 of 2011 - - - Dated:- 27-4-2012 - Prakash Tatia, And Aparesh Kumar Singh, JJ. For the Appellant/Petitioner M/s.M.S. Mittal, Snr. Adv., N. Pasari For the Respondent M/s R.Kumar, S.S.C.C.E., A. Kumar Heard learned counsel for the parties. The petitioner has challenged the summons issued to him under Section 14 of the Central Excise Act, 1944. According to the learned counsel for the petitioner's company, which is a registered company under the provisions of the Companies Act, received a notice dated 12.1.2010 in the name of the company asking it to furnish information given in the said notice. The petitioner-company fully co-operated and furnished all relevant documents and also produced the authorized person of the company to give his statements in inquiry/investigation under section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record with the respondents. It is further stated that issuance of summon only for legal interpretation whether plant and equipments supplied under an independent supply contract is leviable to service tax or not is not permissible and such calling of the petitioner would be an exercise in futility and would only cause undue harassment to the petitioner. However, petitioner and the company are fully co-operating in the inquiry under section 14. 3. Learned counsel for the respondents vehemently submitted that Orissa High Court held that High Court should not interfere at the stage when the Department issues summons and the order of the Orissa High Court rendered in the case of Tata Iron Steel Co. Ltd. Vs. Union of India reported in 1995 (75) E.L.T 501 (Ori) has been approved by the order of the Hon'ble Supreme Court as S.L.P preferred by Tata Iron Steel Co. Ltd has been dismissed. Orissa High Court held that power given to the Excise Officer to call upon the person either to give evidence or produce documents in his custody which the Excise Officer believes would have a vital bearing in the inquiry and the status of the persons summoned is of no relevance. 4. Be th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge of the facts relating to the issue under inquiry/investigation. There may be possibility of delaying tactics, hide and seek as well as deliberate avoidance of responsible person of that company who if faces inquiry may have to face the consequence which may be penal and to avoid natural legal consequences, which may even be of prosecution. But a competent Officer can certainly take care of all issues by taking adequate measures. The power under section 14 of the Act of 1944 , as has been given, are, no doubt, wide enough and thus, the officer exercising such power has power to summon any person whose attendance such Officer considers necessary either to take evidence or produce documents. It has been made further wide by sub-section (2), which makes it obligatory and mandatory upon the summoned person to attend and appear before such officer and sub-section (2) made him bound to state the truth upon the subject of the inquiry. The inquiry has been declared to be a judicial proceeding under section 193 and 228 of the Indian Penal Code. Therefore, it is clear that giving false evidence in proceedings under section 14 of the Act of 1944 is punishable under the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atements on behalf of the company. The company also stated that the company does not want to state more than what Ashim Roy, General Manager (F A), has stated before the authority under section 14 of the Act of 1944. The company's stand also is to the effect that the said authorized officer has issued summon to the Managing Director of the company on the ground that Ashim Roy did not give proper reply to the queries raised by the investigating team, Ashim Roy is one of the seniormost officials of the petitioner-company and is entirely acquainted with all taxation matters of the petitioner-company. 9. In view of the above stand of the petitioner and petitioner company, the Managing Director to whom all facts may not be in full knowledge and in better knowledge than the knowledge of the General Manager (F A) of the company is also a relevant issue. Not only this issue alone can be a factor for us but other factors, which are relevant, are coming from the reply filed by the respondents, wherein the respondents have quoted relevant statements of Ashim Roy to indicate that General Manager (F A), Ashim Roy, gives some evasive reply and even did not disclose what the gross value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a composite contract with single responsibility basis in terms of clause 10 of the contract, copy of which has been placed on record as Annexure C. In view of the above reasons, basically it is a matter of interpretation of a document first so as to find out the real nature of the contract. It is a settled law that when the deed under consideration is having unambiguous and clear terms incorporated in it, the parties either by pleadings or by evidence cannot add or subtract from the said deed. In view of the above, the oral evidence for the purpose of finding the true meaning of the contract between the parties, i.e. the petitioner and its contracting party, is concerned, it depends upon first examining the contract itself and if there is ambiguity and some vagueness which can be cleared by evidence then only evidence can be considered. In section 91 of the Indian Evidence Act, it is clearly provided that when the terms of a contract have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract except the document itself and section 92 excludes the oral evidence for such written contract and it is specifically provided that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t executive or higher person in the affairs of the company refuses or do not want to appear in response to the summon for giving evidence or for producing documentary evidence, then it may be misunderstood because of the sole reason of his status. That impression may not be true in all cases. The efforts of not making appearance before the Assessing Officer by the highest officer or person who is at the helm of the affairs of the company may be due to the reason that he himself may not have knowledge and there is more probability of drawing impression that person in high position must have knowledge of each and every activity and he can be in better position to explain contracts, and such impression may not be correct because of the reason that for better task, planning services of expert are taken whose opinions are accepted by the persons in high position in company and therefore, persons who prepared the contract may better explain the contract, if needed. Therefore, the Assessing Officer or Enquiry Officer should keep in mind that he being an Officer authorized by law to summon any body does not make him an Officer having no control of reasonableness and though he has right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that in the matter of summoning witnesses, there must be reasonableness and the guiding condition is that the witness is necessary for the purpose of inquiry. 15. Therefore, we are of the considered opinion that in the present facts and circumstances, at this stage, when one of the witness has already appeared before the concerned authority, produced all the relevant documents, which were called and summoned by the Enquiry Officer and he has deposed and the company is of the view that it has nothing more to submit, state, explain and admits the statements of the witness, then the Assessing Officer may proceed further with the inquiry at this stage without summoning petitioner himself in person and after forming any opinion about necessity of summoning the petitioner, (prima facie satisfaction), he may be free to summon any of the petitioners and other persons irrespective of the person's status to give evidence. We are passing this order in this case because of the facts of this case only and these facts are that the statements of the witness has already been recorded by the Enquiry Officer and he is also the person who is the General Manager (F A) of the company and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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