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TMI Blog2024 (10) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. During the pendency of this Petition, the first Respondent issued the Petitioner a show cause notice dated 5 August 2024 requiring the Petitioner to show cause as to why its products should not be confiscated and the penalty be imposed. Accordingly, the Petitioner amended this Petition to challenge the show cause notice dated 5 August 2024. 5. Mr Amit Singh learned counsel for the Petitioner, submitted that in terms of Clause 10 of the 2013 Order, there is a bar on exporting any controlled substance in Schedule-B except in accordance with the conditions of the No Objection Certificate issued by the Narcotics Commissioner. He referred us to Schedule-B and submitted that though there is a reference to MEK at Entry 10, the Petitioner's product ADCOTE 545S cannot be styled as MEK, though MEK may be one of the components of ADCOTE 545S. He referred us to Entries 4, 5, 6 and 16 to submit that where any product and its salts and preparations or only salts were intended to be included, Schedule-B says so in specific terms. He submitted that it was only when MEK was sought to be exported and not some product containing MEK that the NOC from the Narcotics Commissioner would be necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this Petition may be dismissed, or the Petitioner may be relegated to the adjudicatory mechanism under the statute. 11. The rival contentions now fall for our determination. 12. The Petitioner has pleaded that it manufactures a product, namely ADCOTE 545S, which is the solvent-based adhesive suitable for lamination of plastic and aluminium foil structure, used in food packaging, non-food packaging, soap and cosmetic packaging, etc. and that it is "Homogeneous mixture of several chemicals including Methyl Ethyl Ketone ('MEK')". 13. One issue in this matter is whether the petitioner's product is included in Schedule-B appended to the 2013 Order made under Section 9A of the NDPS Act. A decision on this issue will essentially involve a factual investigation, and it cannot be easily resolved only by interpreting the various entries in Schedule-B, as Mr Singh urged. 14. Since the 2013 Order was made under Section 9-A of the NDPS Act, we transcribe it for the convenience of reference: "9-A. Power to control and regulate controlled substances. - (1) If the Central Government is of the opinion that, having regard to the use of any controlled substance in the production or man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, name and address of the consignee, exporter and the importer, to the Narcotics Commissioner within a period of seven days of export." 17. Since Clause 10 of the 2013 Order refers to Schedule-B and the entire thrust of the Petitioner's arguments is based upon the interpretation of the various entries in Schedule-B, we transcribe Schedule-B for the convenience of reference. "SCHEDULE-B (Schedule-B substances are those controlled substance whose export from India is subject to controls as specified in this Order.) 1. Acetic anhydride 2. N-Acetylanthranilic acid 3. Anthranilic acid 4. Ephedrine, its salts and preparations thereof 5. Ergometrine and its salts 6. Ergotamine and its salts 7. Isosafrole 8. Lysergic acid and its salts 9. 3, 4-methylenedioxyphenyl-2-propanone 10. Methyl ethyl ketone 11. Norephedrine (Phenylpropanolamine), its salts and preparations thereof 12. 1-phenyl-2-propanone 13. Phenylacetic acid and its salts 14. Piperonal 15. Potassium permanganate 16. Pseudoephedrine, its salts and preparations thereof 17. Safrole and any essential oil containing 4% or more safrole." 18. Entry 10 refers to "Methyl Ethyl Ket ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EK or a chemical containing MEK in extractable form, a No-Objection Certificate from the Narcotics Commissioner is required. Again, this communication buttresses our reasoning that this is a matter that would require factual investigation and that this is not a matter that a Writ Court can decide on when examining the validity of a show cause notice. 23. The argument that the Assistant Narcotics Commissioner's communication discloses bias or a closed mind cannot be accepted. The Customs authorities issued the Show-cause notice. The Assistant Narcotics Commissioner's communication only conveys the Commissioner's opinion to the Deputy Commissioner of Customs. When adjudicating the show cause notice, the Petitioner will have full opportunity to comment upon such opinion or its correctness. However, insisting that this Court carry out this exercise while examining the validity of a show cause notice would not be appropriate. 24. At this stage, we do not wish to go into all such intricate issues that, in our opinion, would be involved in this matter. All that we want to indicate is that this is not a matter where we should interdict the entire process when it is always open to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tertained against the show cause notices where the Petitioner seeks enforcement of any of the fundamental rights, where there is a violation of the principles of natural justice; where the order or proceedings are wholly without jurisdiction, or vires of the Act is challenged. 29. Of late, almost as a matter of routine, Petitions are filed to challenge show cause notices by trying to portray that the case falls within one of the parameters prescribed by the Hon'ble Supreme Court when, most often, that is not the case. Several times, non-serious challenges are thrown to the constitutionality of the provisions, only to avoid exhausting the alternate remedies provided by the statute. The alternate remedies very often involve a pre-deposit of the demanded tax amount. Therefore, very frequently, such Petitions are filed to avoid pre-deposit. Such an approach is neither to be encouraged nor approved. 30. In Special Director and Another Vs. Mohd. Ghulam Ghouse and another (2004) 3 SCC 440 the Hon'ble Supreme Court has held that unless the High Court is satisfied that the show-cause notice was totally non-est in the eye of the law for absolute want of jurisdiction of the authority to eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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