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TMI Blog2012 (1) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents annexed to the writ petition being W.P. (C) No. 4854/2011, primarily the said writ petition is dealt with for appropriate order. 3. I have heard Dr. P. Kumar, learned counsel assisted by Mr. S.K. Medhi, learned counsel appearing for the petitioner as well as Mr. B. Sharma, learned Standing Counsel, Central Excise. I have also gone through the entire materials on records. 4. As noted above, both the writ petitions are against the show cause notices issued by the Commissioner of Central Excise, Guwahati, by which the petitioner has been called upon to show cause as to why the amounts mentioned in the notices under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 and the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 should not be demanded and recovered in terms of the Central Excise Act, 1944. By the impugned notices, the petitioner has also been called upon to show cause as to why interest on the said amounts should not be charged and realized under Section 11AB of the Central Excise Act, 1944 read with the relevant rules of the aforesaid rules. The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper assessment of duty payable on excisable goods. M/s. Dharampal Satyapal Limited, Shed No. OS/4/R/24, Industrial Estate, Bamunimaidan, Guwahati - 781021 are, therefore, asked to show cause before the Commissioner, Central Excise, Guwahati within 30 (thirty) days of receipt of this notice as to why - (a) the said amount of ₹ 2,04,00,000/- (Rupees Two Crores Four Lakhs) only shall not be demanded and recovered from them in terms of Section 11A(1) of the Central Excise Act, 1944 read with Rule 5 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 and Notification No. 42/2008-C.E., dated 1-7-2008; (b) Interest, as applicable, on the aforementioned amount shall not be charged and realized from the said assessee in terms of Section 11AB of the Central Excise Act, 1944 read with Rule 9 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008; and (c) Penalty shall not be imposed on them in terms of sub-rule (1) of Rule 17 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. M/s. Dharampal Satyapal Limited, Shed No. OS/4/R/24, Industrial Est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India, will be reluctant to exercise the said jurisdiction at this stage and that too when the disputed question of facts are involved. 8. Commenting on the merit of the case of the petitioner, it has been contended that Rule 5 of the Rules specifies the quantity of notified goods deemed to be produced by the use of Single Operating Packing Machine with respect to the declared Retail Sale Price (per pouch) and that the petitioner was paying duty on the basis of the deemed production per operating machine. But during the scrutiny of the records of their manufacturing units, it was noticed that they were manufacturing far in excess of quantity deemed to be produced as per the said rule, whereas they were discharging duty only to the extent of per machine-wise deemed production. 9. It has been contended by the respondents that the excess production of such goods produced was attributable to the deemed production by additional packing machines, which were escaping levy of duty. According to the respondents, the assessee i.e. the petitioner failed to make proper assessment of their duty liability as required under Rule 6 of the Central Excise Rules, 2002 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en raised, the writ petitions are required to be adjudicated upon on merit, exercising the power of writ jurisdiction. 14. The decision on which the learned counsel for the petitioner has placed reliance, is primarily on the interpretation of Taxing Statute. Needless to say that it is well settled that in a taxing statute, there is no room in intendment but regard must be had to the clear meaning of the words. According to the learned counsel for the petitioner, the authority which had issued the impugned notices could not have attributed to the petitioner, excess production of pouches indicated in the impugned show cause notices to be the deemed production by four more packing machines. 15. Mr. B. Sharma, learned Standing Counsel, Central Excise has drawn my attention to the provisions of the rules requiring the declaration to be filed by the manufacturer. Rule 5 of the said rules speaks of quantity deemed to be produced. Rule 6(vii) requires the manufacturer of notified goods to declare the name of the manufacturer of each of the packing machine, its identification number, date of its purchase and the maximum packing speed on which they can be operated for packing of notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded to powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petition even at the threshold by the interim protection, granted. 18. The question necessarily arises as to whether the writ petitions should be entertained at this stage of issuance of show cause notices requiring the petitioner to respond to the same dealing with the queries raised therein. Though, no hurdle can be put against the exercise of the constitutional powers of the High Court, it is an well recognized principle which has gained judicial recognition that the High Court should direct the parties to avail itself all such remedies one or the other before it resort to constitutional remedy. 19. The proceedings under Article 226 of the Constitution of India are not a substitute for a proceeding initiated by the impugned show cause notices. The only enquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of fact be better left open to be resolved by the adjudicating authority, which has issued the impugned show cause notices. 23. The allegations contained in the impugned show cause notices require adjudication on investigation of the disputed facts. The materials on record cannot lead to an interference that the allegations in the show cause notices are wholly non-existent and that there is no foundation or basis of the allegations. In the writ petitions there is no challenge as to the vires of the statutory provisions governing the matter nor there is any question regarding violation of fundamental rights involved in the said proceedings. On examination of the materials on record, it cannot be said that the notices are ex facie nullity and without jurisdiction. The basic facts on the basis of which the authority has assumed jurisdiction on the subject matter to initiate and continue the proceeding, in my considered view, requires investigation and adjudication. The initiation of proceeding cannot, under the circumstances, be said to be unauthorized and without jurisdiction. 24. In Union of India v. Metal Box Co. of India Ltd. reported in (1996) 11 SCC 122 = 1996 (87) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances. It will be a sound discretion not to stall the proceeding initiated by the competent authority through the impugned show cause notices by entertaining the writ petitions. Consequently, the preliminary objection made by the respondents, stands upheld and the writ petitions are dismissed being not maintainable at this stage. 27. The petitioner may respond to the impugned show cause notices dealing with all the grounds urged in the writ petitions. In the event of such response being shown, the authority shall deal with the same towards taking a decision in the impugned show cause notices. Depending upon the outcome of such a course of action, future rights and liabilities of the parties will govern. 28. Before parting with the case records, it is made clear that this order has not touched the merit of the case of the either parties, which shall be decided by the authority dealing with the show cause notices and the reply, if any, furnished by the petitioner. Needless to say that the said authority shall deal with the matter appropriately and strictly in accordance with law and facts involved. 29. Both the writ petitions are dismissed. There shall be no order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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