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TMI Blog2015 (7) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Intelligence conducted search at the office of the petitioner and seized certain documents upon issuing the summons on the spot on 7th June, 2013. It further appears that two cheques for Rs. 1,00,00,000/- each was handed over to the authorities by the authorized representative of the petitioner towards the service tax liability. 2. By a subsequent letter dated 27th June, 2013, the petitioner requested the Central Excise Officer to release the seized records as the non-availability of the same is creating a tremendous difficulties in operating day to day business activities which includes one pen drive. Immediately thereafter, the writ petition came to be filed before this Court challenging the summons issued on 7th June, 2013 with further direction to hand over all the documents including the pen drive seized at the time of search and seizure. At the time of admission of the writ petition, an objection came from the respondent authorities that the document pertaining to the seizure annexed to this writ petition have been tempered with by incorporating one pen drive which was never seized by the authorities. For such reason, the petitioner was directed to produce the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegation as to forcible taking of the two cheques is specifically denied. 6. At the time of argument, the petitioner drifted from his stand taken in the writ petition and attacked the search and seizure dated 7th June, 2013 on the ground that there was no reason to believe for conducting the said search which is one of the requirement of law. An extensive argument is advanced on the said plea upon relying various judgments of the High Courts and the Supreme Court which shall be dealt with seriatim in details hereinafter. 7. The learned Advocate for the petitioner strongly submits that there should be "a reason to believe" pertaining to the concealment of a document or evasion of a duty before conducting the search and seizure as held in case of Durga Prasad v. H.R. Gomes, Superintendent (Prevention) Central Excise AIR 1966 SC 1209. It further submitted that the non-disclosure which led to an authority "a reason to believe" vitiates the action for search and seizure and relied upon the judgment of the Supreme Court in case of S. Narayanappa v. CIT AIR 1967 SC 523. By placing reliance upon another judgment of the Supreme Court in case of R.S. Seth Gopikisan Agarwal v. R.N. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2013 demanding the return of those documents for smooth running of day to day business activities. By relying upon a letter dated 7th June, 2013 issued by the authorized representative of the petitioner-company, the respondents say that two cheques covering Rs. 2,00,00,000/- were voluntarily handed over to the authority on admitting the service tax liability for the past period. It is thus submitted that the allegation of collecting those two cheques forcibly is unfounded and false on the face of the admission made in the said letter. Lastly it is submitted that the Writ Court is not supposed to make a full-fledged inquiry whether the petitioner has evaded the service tax or not and prayed for dismissal of the writ petition. 9. The core question involved in this writ petition is whether the Court should set aside the summons issued in course of the search and seizure being wholly without jurisdiction and in excess of the power prescribed under Section 82 of the Finance Act, 1994. 10. The brief facts already been narrated herein above wherefrom it is apparent that there is no case made out in the writ petition and no averment could be discerned therefrom on the point that the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Customs Act. Section 105 of the Customs Act contains the provision for search and seizure provided the authority named therein has reason to believe. The Apex Court held though the power of search and seizure is provided under the aforesaid provision but it is essential that before the same is exercised the concerned officer must have a reason to believe that the documents or the things which is in opinion in secreted is relevant for any provision under the said Act. Even in case of S. Narayanappa (supra), the Supreme Court interpreted the expression "reason to believe" appearing a Section 34 of the Income Tax Act, 1922 not to mean a purely subjective satisfaction but should be based on rational connection or relevance on formation of belief. In case of R.S. Seth Gopikisan (supra), the Constitution Bench held though the authority need not give the reason but when the existence of belief is questioned in any collateral proceeding, he has to produce relevant evidence to sustain his believe. However, in case of Sheo Nath Singh (supra), relating to the Income Tax Act, 1922, the Apex Court interpreted the expression "reason to believe" to be an honest and based upon reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned. 17. To counter the aforesaid stand, the respondents have relied upon the letter dated 7th June, 2013 issued by the authorized representative of the petitioner-company accepting the handing over of two cheques covering the said amount after admitting the service tax liability. The plain reading of the said letter supports the stand of the respondent. Since the petitioner have stated that the authorized representative was compelled to sign on the said letter and issued two cheques covering the said amount, this Court cannot decide whether the same was taken forcibly or was issued voluntarily. Furthermore, a sum of Rs. 1,00,00,000/- has already been deposited with the respondent authorities through RTGS and in terms of the interim order passed on 12th August, 2013, this Court extended the time for deposit for further sum of Rs. 1,00,00,000/-. The Writ Court should not embark to decide the disputed questions of fact, which are to be decided on a full-fledged trial. It should not usurp the power of the authority and convert itself into an original authority. 18. The reliance is heavily placed on the judgment of this Court in case of Naresh Kumar (supra) that the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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