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TMI Blog2007 (7) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit. 4. The first petitioner herein is a partnership firm running a 100% ex-port-oriented unit, situated in Greater Noida district of Uttar Pradesh. The petitioners no. 2 and 3 its partners and the petitioner no 4 is the husband of the petitioner no. 3. 5. The first petitioner has been engaged in the extraction of copper, aluminium, iron, lead and other scrap from copper cable scrap and copper lead cable scrap, imported from outside India. They were availing of exemption of duty from import under the Export Promotion Policy. On receiving an intelligence report that the first petitioner indulged into undervaluation and clandestine removal for evasion of customs and excise duty, the officers of the Department of Revenue Intelligence (DRI), New Delhi, raided the premises of the first petitioner on 24-8-2004. They seized the computers and various other voluminous records of the first petitioner. 6. At the time of the search, statement of one Shri Vinay Jain, partner of the first petitioner, was recorded under Section 108 of the Customs Act. Shri Vinay Jain, partner of the first petitioner, is stated to have admitted that the first petitioner had resorted to undervaluatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue concerning seizure of books and records. The circular directs the officers of the Excise Department that the non-relied seized goods and documents should be released to the assessee in cases where show cause notice is not issued, within six months from the date of the seizure The circular further states that - "3 Once the show cause notice is issued to the party the documents/records which have not been relied upon may be returned to the party under proper receipt. The assessee may also be allowed to obtain photocopies of the documents relied upon. The above measures would help substantially reduce the time taken by the party for inspection of seized documents." 12. The petitioner also relied upon a subsequent circular of the Central Board of Excise and Customs, dated 8-9-2006 which states, in clause 2 thereof, as follows. - "In this regard your attention is invited to the Board's Circular No. 42/88-CX, dated 24-5-1988 and No. 48/88-CX6, dated 10-6-1988. As per these circulars, the documents/records which are not relied upon in the show cause notice are required to be returned under proper receipt to the persons from whom they are seized. I wish to reiterate complian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied in support of the notice, were not supplied, the respondents have annexed the acknowledgement of the petitioner, dated 22-3-2006, to the counter-affidavit filed to the petition, which records that the documents relied upon were supplied to the petitioner. 18. As far as the plea of the petitioner that the documents not relied upon were not being returned, it is the stand of the respondents that many such documents are sometimes required for other investigation and the first circular dated 2-2-1996, relied upon, merely stated that such documents may be returned. It does not say that they shall be returned. In any case, the respondents are ready to make available the photocopies of such non-relied documents and they relied upon three such letters of 23-6-2006, 29-1-2007 and 9-2-2007. They also relied upon the fact that it is recorded that the petitioners have collected copies of the non-relied documents may be after the passing of the order, i.e., on 7-3-2007. 19. Mr. Rawal, learned senior counsel, appearing for the petitioners, submitted that the petitioners were seriously prejudiced in their defence. The circular is very clear that non-relied documents are to be return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file an appeal to the Central Excise Service Tribunal and that when an alternative remedy is available, this Court should not interfere. 25. As far as this submission of Dr Nigam is concerned, we must note that exhaustion of alternative remedy is a principle of self-limitation. It is not a pre-condition for resort to the writ jurisdiction but more of a rule of policy, convenience and discretion on the part of the High Court as laid down in A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and another, 1983 (13) E.L.T. 1327 (Tribunal) = AIR 1961 SC 1506. Again, as held by the Apex Court, in exceptional circumstances, certiorari may be issued notwithstanding that statutory remedy is not exhausted. This is held in Collector of Monghyr and others v. Keshav Prasad Goenka and others , AIR 1962 SC 1694. 26. In the present case, the petitioner is relying upon the circulars of the Central Government. In any case, they are binding on the Department, as held by the Apex Court in Collector of Central Excise, Vadodara v. Dhiren Chemical Industries , 2002 (139) E.L.T. 3 (see para 9). 27. From the last part of para 4 of the impugned order, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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