9911796707
TMI Blog2019 (1) TMI 1729X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and the materials available on record and pass an assessment order in respect of the tax liabilities and other charges to be paid by the assessee concerned. Such a power when provided under the provisions of the statute, the writ petitioner cannot challenge the show cause notices by stating that the show cause notices are in contravention with the circular issued by the Commissioner. Circulars/instructions are issued for the purpose of clarifying certain procedures to be followed or to provide instructions to the Subordinate officials. Such circulars/instructs would not have any statutory enforceability and the same cannot be equivalent with the statutes or rules as a matter of fact. Thus, it is made clear that the instructions/circulars cannot have any enforceability as far as the statutory provisions are concerned and therefore, the very ground raised in this regard by the writ petitioner deserves no merit consideration. This Court is of an undoubted opinion that the writ petitioner has not raised any acceptable ground for the purpose of granting the relief as such sought for in the writ petitions - Petition dismissed. - W.P. Nos. 25291 & 8234-8236 of 2006, W.P.M.P. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present appeals. 4.1 No doubt, the goods were in retail pack covered by a mono-pack carton. What that was cleared was mono-pack carton but not the retailable goods. Rule 34 of the 1977 Rules at the material time very specifically states that the goods weighing less than 20 grams or less than 20 milli litres when sold by weight or measure, are out of the purview of1977 Rules. 4.2 In the present case, the categorical fact finding by the Authority below is that the appellants had cleared 6 gms. Sachet of the Hair Dye in a monopack carton containing six numbers of such sachet. The weight of goods in individual sachet satisfies the condition of Rule 34 of 1977 Rules. Therefore, goods of appellant are covered by Rule 34 of the 1977 Rules and enjoy exemption from application of the 1977 Rules. Once there is an exemption, the judgment of the Apex Court in the case of Krafftech Products(supra) shall apply. It is relevant to reproduce paras-15, 21 and 23 of the judgment of the Apex Court in Krafftech Products(supra) to appreciate the law on the subject and meaning of the term multi-piece package , as well as applicability of Rule 34 and exemption granted by that rule as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 is relevant and the same is extracted hereunder :- 23. We have noticed hereinbefore that each package offered to sell to the customer contains three sachets. Net weight of all the three sachets are stated thereon. It is a multi-piece package which is capable of being offered to sell as such only because a package is a multi-piece package , the same cannot be taken out of the umbrage of exemption clause contained in Rule 34 of the Rules. Why the commodity cannot independently be sold either by weight or measure is beyond our comprehension, particularly when Rule 12(2) permits the same. The illustration appended to Rule 2(j) brings out a clearer picture. It states that the combined net weight shall be taken into consideration for the purposes mentioned therein. After combined weight is taken into consideration for the purpose of applicability of the Rules, there is no reason as to why the said purpose shall not be considered to be a relevant factor for applying the exemption provision. Assuming Rule 2(j) was otherwise vague or unambiguous, illustration appended thereto brings out the true meaning and purport thereof. The reasoning adopted by the Madras High Court in Varnica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 37B(a) denotes that provided that no such orders I instructions or directions shall be issued - a) so as to require any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner . 9. The above provision is unambiguous that the Central Excise officer is competent to adjudicate the facts and the materials available on record and pass an assessment order in respect of the tax liabilities and other charges to be paid by the assessee concerned. Such a power when provided under the provisions of the statute, the writ petitioner cannot challenge the show cause notices by stating that the show cause notices are in contravention with the circular issued by the Commissioner. Circulars/instructions are issued for the purpose of clarifying certain procedures to be followed or to provide instructions to the Subordinate officials. Such circulars/instructs would not have any statutory enforceability and the same cannot be equivalent with the statutes or rules as a matter of fact. Thus, it is made clear that the instructions/circulars cannot have any enforceability as far as the statutory provisions are concerned and therefore, the very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice. The writ petitioner has to submit his explanations/objections on the show cause notices with reference to the facts set out in the notice and defend his case in the manner known to law. Contrarily, a writ petition cannot be filed for the purpose of adjudication of the merits with reference to the allegations or facts set out in the show cause notice. Such an exercise can never be done in a writ proceedings under Article 226 of the Constitution of India. Adjudication of merits at this point of time involves verification of original documents and adducing of evidences, if required by the original authority. 13. This being the procedures and principles to be followed, the writ petitioner has to approach the original authority for the purpose of adjudication of the facts and the materials available on record. 14. Under these circumstances, this Court is of an undoubted opinion that the writ petitioner has not raised any acceptable ground for the purpose of granting the relief as such sought for in the writ petitions. However, it is made clear that the writ petitioner is at liberty to file his objections/explanations if any along with the documents to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
