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TMI Blog2017 (1) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice are correct or not, is for the adjudicating authority to finally determine, after considering the objections to be filed by the petitioner while passing the order in original, of course by giving due opportunity of hearing to the petitioner - any view expressed in the show cause notice or opinion formed therein against the petitioner, is only a prima facie view or opinion of the authority and not the final conclusion itself. After all, it is only calling upon the petitioner to show cause. Absolutely no prejudice would be caused to the petitioner if they reply to the show cause notice. At this stage, this Court cannot get into the shoes of the adjudicating authority and find out as to whether the particulars furnished in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing for the petitioner and perused the materials placed before this Court. 4. These matters are listed before this Court for admission. 5. The learned senior counsel appearing for the petitioner vehemently contended that though the petitioner is questioning the show-cause notice issued by the first respondent in W.P(MD)No.121 of 2017, still this Court can entertain the writ writ petition since there is gross violation of principles of natural justice and that there is an error apparent on the face of the record. The learned senior counsel thus submitted that as the present impugned show-cause notice came to be issued ignoring various communications made between the parties for the past four years, the same is to be construed as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9. Therefore, the next question that would arise for consideration is as to whether the show-cause notice, on the face of it, is illegal warranting interference by this Court. 10. In my considered view, perusal of the show-cause notice issued by the competent authority, who has absolute jurisdiction to issue the same, would reveal that there is no reason for this Court to conclude that the impugned show-cause notice is ex-facie illegal or something is wrong therein apparent on the face of it. The first respondent has stated in the show- cause notice that during the course of audit accounts it was noticed by the Audit Officers that the assessee was engaged in sale of various branded Automobile Vehicles and spare parts to their custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner is to the effect that they have not availed such Cenvat credit and they also intimated the same on various occasions to the respondents. Needless to say that this disputed question of fact has to, necessarily, be gone into and decided only by the adjudicating authority, after considering the petitioner's objections to the show-cause notice and all materials placed by them with such objection, even assuming by way of repetition. 12. The above stated facts and circumstances would further disclose that there are certain particulars and discussions made by the first respondent in the show-cause notice itself. Therefore, this Court is of the view that the contention of the learned senior counsel appearing for the petitioner that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show-cause notice would amount to violation of principles of natural justice. Needless to say that each case has to be considered on its own merits, depending on the facts and circumstances of that particular case. In this case, I have already pointed out as to how the above said contention of the learned senior counsel for the petitioner is not correct and as to how the show-cause notice was issued by disclosing certain particulars. Needless to say that the question as to whether the particulars given in the show cause notice are relevant or material particulars and would ultimately require for adjudication, is for the adjudicating authority to consider and decide, since the adjudicating authority being the first fact finding authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Bank of India -vs- Satyawati Tondon and others reported in (2010)8 SCC 110. 3) Raj Kumar Shivhare -vs- Assistant Director, Directorate of Enforcement and Another reported (2010)4 SCC 772. 4) Metal Weld Electrodes -vs- CESTAT, Chennai reported in 2010 (299) ELT 3 DB. 16. In the above decisions, it has been held that when an alternative remedy is available, more particularly, in the cases of fiscal nature,invoking of the jurisdiction under Article 226 of the Constitution of India, is not permissible. 17. Insofar as the other writ petition in W.P(MD)No.122 of 2017 is concerned, the petitioner seeks for a Mandamus forbearing the respondents from issuing further show-cause notices for the year 2012-2013 to 2015-2016. I do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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