2015 (9) TMI 878

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..... shown the less production in ER-7 returns when the capacity of the kiln is to produce 72,000 metric tonnes. On the basis of such prima facie finding, a show cause notice is issued upon the petitioner as to why the Central Excise Duty amounting to Rs. Twenty five crores and odd have not recovered together with the penalty and the interest. 2. According to the petitioner, the authority have made up their mind finally which could be deciphered from the language used in the said show cause notice and it would be a futile exercise to submit to the jurisdiction of the said authority. This Court does not agree with the aforesaid submissions. The show cause notice must contain the statements which the issuing authority have reason to believe .....

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..... y quoted hereunder:  "15. On the basis of the decisions cited it appears that the Court in exercise of its jurisdiction under Art. 226 of the Constitution will interfere with a show cause notice in the following circumstances: (1)     When the show cause notice ex facie or on the basis of admitted facts does not disclose the offence alleged to be committed; (2)     When the show cause notice is otherwise without jurisdiction; (3)     When the show cause notice suffers from an incurable infirmity; (4)     When the show cause notice is contraiy to judicial decisions or decisions of the Tribunal; (5)     When there is no material just .....

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..... a show cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out." 5. Since the authority have not decided the issue finally as the petitioner was invited to give defence to the allegations made in the said show cause notice, this Court does not feel that a .....

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