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TMI Blog2015 (11) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... etails of the documents to be furnished as per the order passed on 10.03.2015 and sent a reminder on 05.05.2015, however all of a sudden, to their surprise, the impugned letter dated 12.05.2015 was issued informing the petitioner that it is not reasonable to call for the documents which are not cited as relied upon documents in the show cause notice, on that basis, the petitioner was asked to submit his explanation, hence, the petitioner came to this court challenging the impugned communication dated 12.05.2015 raising two issues that in spite of a specific direction given by this court in other decision to furnish all the relevant documents which are relied on in the show cause notice, the respondent failed to furnish the same, as a result, the petitioner is neither able to give reply nor able to raise the basic and preliminary issue whether the Central Excise Department has jurisdiction to assess and levy central excise from the petitioner in view of notification No.63/95 granting full exemption to the petitioner's mine from the application of the Act. In the judgment of the ESI Court at Tirunelveli in ESIOP.No.8/2012 that the petitioner comes under the purview of the Mines Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are entirely exempted from the levy of central excise as per Notification Nos.63/95 dated 16.03.1995, while so, knowing this fact fully well the respondents on earlier occasion had issued a show cause notice dated 26.12.2014 calling upon the petitioner to show cause as to why the products viz., Ilemenite, Zircon, Rutile, Sillimanite, leucoxene manufactured out of sea sand (ore) and cleared the same during the period from 01.03.2011 to 31.03.2014 should not be classified as concentrates of Ilemenite, Zircon, Rutile, Sillimanite, leucoxene under chapter sub heading 26140020, 26151000, 26060090 and 26140090 of CETA respectively, while similarly situated persons are granted exemption. The petitioner being a mining company alone cannot be treated differently, hence, they filed W.P(MD)No.3316 of 2015 before this Court. This Court, by order dated 10.03.2015 refusing to entertain the writ petition purely on the preliminary issue that no writ petition is maintainable to challenge the show cause notice, has granted a clear direction to the department to furnish the relevant documents which are relied on in the show cause notice that the said directions to furnish documents are not fully co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents and asked for the Laboratorty Analysis Reports and Test Certificates showing that the materials taken from the petitioner are analysed and found to be 'ore' or 'concentrate' and also the copy of the order passed by the Customs Department on the very same identical issue, proof of export of minerals, copies of documents which were relied on to arrive at the conclusion about the related entities under Section 4(3)(b) of the Act, some of the aforesaid documents were refused, because, the department only gave one huge bunch of invoices and asked the petitioner to search through them, such approach has failed to serve the purpose. The reason is, he pleaded, if a specific invoice is said to give rise to a charge of underinvoicing or misdeclaration, then it is for the department to point out that invoice, so that, the petitioner can explain the same properly, however, leaving that course, simply giving one bunch of invoices to the petitioner to trace out the relevant documents therein without keeping the said documents inside the bunch will not amount to compliance of the order passed by this Court. 6. Referring to paragraph 3.2. of the show cause notice, he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been made raising a preliminary issue to decide whether the petitioner comes within the purview of Mines Act and hence entitled to exemption under Notification No.63/95. This jurisdictional issue has already been decided by the Apex Court in Management of Express Newspapers (Private) Ltd., Madras vs. The Workers and others reported in AIR 1963 SC 569 holding that jurisdiction issue must be decided first as they go to the root of the matter, however, the respondents deliberately knowing fully well that there has been a direction issued by this Court on 08.07.2015 to furnish copies of documents on issue-wise in a separate cover and also to decide the preliminary issue, have miserably failed to adhere to the aforesaid directions, therefore, the impugned proceedings dated 12.05.2015 openly declaring that it is not reasonable to call for the documents which are not cited as relied documents in the show cause notice and therefore the petitioner is at liberty to put forth their points of view in his reply, he pleaded, should be quashed with a consequential direction to the respondents to comply with two directions issued by this Court on 10.03.2015 in W.P(MD)No.3316 of 2015 namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings, therefore, the petitioner has impleaded the 2nd respondent in his personal capacity. 9. He further submitted that the petitioner is having 8 plants located at different places where waste sand is separated from the mineral-rich beach sand and these plants are therefore 'mines' as defined in Section 2(1)(j) of the Mines Act, 1952. This apart, 4 of the plants are located within the lease area itself while others are located within the environs of the lease area, hence, the notification No.4/2006 exempts all processes with respect to ores from the levy of central excise. 10. Continuing his arguments, learned counsel for the petitioner would submit that admitted position of the petitioner's plants as mines could be very well seen in the stand taken by the department in order in Original No.TVM-Ex.Cus-000-COM-10-13-14 dated 30.12.2013 making it clear that all the process carried out at such plants are fully exempted from the levy of central excise by virtue of notification No.63/95 dated 16.03.1995. Besides, all these units have the legal status of mine and received the judicial recognition in the judgment and decree of the Principal Subordinate Court at Tir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the show cause notice before the respondent on receipt of the relevant documents which are relied on in the show cause notice with a further direction to the respondent to furnish the petitioner all the documents relied on in the show cause notice. 12. Denying the allegation that Raja Climax is having close relationship with the 2nd respondent/Commissioner of Central Excise Tirunelveli, it is further submitted that the said Raja Climax being Superintendent the 2nd respondent, normally, there is a relationship between them as superior and the subordinate only, therefore, the allegation of the petitioner attributing mala fide against the respondent that the show cause notice is issued wilfully without any basis, he pleaded, is far from acceptance and it is only for the purpose of protracting the issue, the petitioner is imputing malice against the respondent. 13. Coming to the main issue, learned counsel for the respondents would submit that so far as the main issue in the writ petition is concerned namely, serving of the relied upon documents, the department is always ready to provide the same, however, so far as the averments and the allegations in the affidavit of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials available on record. 17. During the hearing of W.P(MD)No.3316 of 2015, the department has taken a stand that they will make the document requested by the petitioner for ready and hand over the same. In view of that, this Court while dismissing the writ petition on the ground that no writ petition will lie against the show cause notice, directed the respondent to furnish all the relevant documents which are relied on in the show cause notice. Subsequent thereto, the petitioner has given a representation on 20.07.2015 giving the details of the documents requested and also making out a prayer for deciding the preliminary issue. On receipt of the same, the respondent issued another letter dated 20.07.2015 which is given as under:- Today on 20.07.2015 we are ready to serve upon documents mentioned in the SCN as directed by the Hon'ble Madurai Bench of Madras High Court vide Order dated 08.07.2015 made in W.P(MD)No.8871 of 2015. However, your authorized representative Shri.A.H.Andeswaran has told that he would collect the above said documents only in the presence of their Counsel. And since the Counsel is not available, he could come and collect the above said docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to submit his explanation, hence, the petitioner came to this court challenging the impugned communication dated 12.05.2015 raising two issues that in spite of a specific direction given by this court on 10.03.2015 in W.P(MD)No.3316 of 2015 to furnish all the relevant documents which are relied on in the show cause notice, the respondent failed to furnish the same, as a result, the petitioner is neither able to give reply nor able to raise the basic and preliminary issue whether the Central Excise Department has jurisdiction to assess and levy central excise from the petitioner in view of notification No.63/95 granting full exemption to the petitioner's mine from the application of the Act. 20. In regard to the question of res judicata, it may be mentioned that when the petitioner's earlier W.P(MD)No.3316 of 2015 challenging the show cause notice was dismissed with a direction to the respondent to furnish all the relied upon documents, subsequently, although part of the documents were furnished to the petitioner, some other documents were not furnished, therefore, the subsequent communication has been impugned rightly, hence, the contention of the respondents that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied with for the following reasons:- A careful perusal of paragraph 2 of the interim order dated 08.07.2015 makes it clear that unless and until the preliminary issue as well as the merits of the matter are decided, there will not be any finality. In compliance with this directions, the respondents also in their counter affidavit have taken a stand that they are willing to furnish the documents required by the petitioner. 22. In this regard, it is relevant to extract the following portion from paragraph 6 of the counter affidavit filed by the 2nd respondent which is given as under:- The main issue in this writ petition is about serving of the relied upon documents for which the department is always ready to provide the same. No enquiry can be fair and complete unless the person facing enquiry is furnished with all the requisite documents. 23. It is a well settled legal position that right to fair hearing is a guaranteed right. Every person before an authority who is exercising the adjudicating powers has a right to know the evidence to be used against him. This principle is firmly established and recognised by the Apex Court in Dhakeswari Cotton Mills Ltd., vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 76.The existence of jurisdictional fact is thus sine qua non or condition precedent for the exercise of power by a court of limited jurisdiction. ..... A wrong decision on 'fact in issue' or on 'adjudicatory fact' would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present. 20. This principle was reiterated in Carona Ltd., v Parvathy Swaminathan Sons [(2007 8 SCC 559] and in Ramesh Chandra Sankla v. Vikram Cement, [(2008) 14 SCC 58]. Applying the above principles enunciated by the Honourable Apex Court to the case on hand, we have no hesitation to hold that the second respondent/Commission has proceeded to decide a question without there being any jurisdiction conferred on it and thus the order passed by the second respondent/Commission is bad in law. 25. Similarly, the Apex Court also in Management of Express Newspapers (Private) Ltd., Madras vs. The Workers and others reported in AIR 1963 SC 569 while dealing with the jurisdiction of the industrial Tribunal has categorically held that normally such questions are to be decided by the Tribunal it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in O.S.No.144 of 2010 dated 27.06.2012 and again in the judgment of Chief Judicial Magistrate, Tirunelveli, in C.C.No.114 of 2007 and also in the judgment of the ESI Court at Tirunelveli in ESIOP.No.8/2012 that the petitioner comes under the purview of the Mines Act and their activities are mining activity, hence, it is necessary for the respondents to decide the preliminary issue whether the petitioner is entitled to exemption under Notification Nos.63/95 dated 16.03.1995 and 4/2006 dated 01.03.2006 for the reason that para 17(11) of the notification states that 'mine' has meaning given in Section 2(i)(j) of the Mines Act, 1952 and as per Section 2(i)(j) the word 'mine' includes not only the mine area, but also the place where sand is processed, the place where the workshops are located and any adjacent premises. 27. Similarly, another notification No.4/06 dated 01.03.20006 also exempts all ores from the levy of central excise. In this context, it is pertinent to refer to various orders and judgments of both civil and criminal courts, holding that all the units of the petitioner firm are coming within the definition of 'mine', they are; 1) Judgment pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.03.1995 and 4/2006 dated 01.03.2006 after giving a personal hearing to the petitioner within four weeks from the date of receipt of this order and accordingly, the interim order dated 08.07.2015 passed by this Court directing the respondents to furnish all the requisite documents to the petitioner and to determine the preliminary issue is hereby made absolute and confirmed. 28. In the light of the above discussion and decisions, the impugned order dated 12.05.2015 informing the petitioner that it is not reasonable to call for the documents which are not cited as relied upon documents in the show cause notice dated 26.12.2014, is partly set aside and a direction is issued to the 1st respondent/Commissioner Central Excise, Tirunelveli, to furnish the documents sought for by the petitioner in their letter dated 05.05.2015 and thereafter consider the representation of the petitioner with regard to the preliminary issue to decide whether the Central Excise Department has any jurisdiction to assess and levy central excise from the petitioner in view of section 5A(1) of the Central Excise Act giving exemption to certain products from the application of the Central Excise Act and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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