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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 ..... se notice is entirely irrelevant. Based on the pleadings, it is doubtful whether the relief of declaration that no NOC from the Narcotics Commissioner was required, to be granted. In all probabilities, we would have relegated the Petitioner to respond to the eventual show cause notice that would have to be issued to the Petitioner. Now that a show cause notice has been issued, there is no case made out to deviate from the usual rule of exhaustion of alternate remedies. In Special Director and Another Vs. Mohd. Ghulam Ghouse and another [ 2004 (1) TMI 378 - SUPREME COURT] 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 even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine. The writ petitioner should invariably be directed to respond to the show cause notice and take all the grounds that may now be highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which the recipient of the notice can even urge, and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arcotics 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. 6. Mr Singh submitted that the issuance of show cause notice in the above circumstances is an exercise without jurisdiction. Therefore, a rule must be issued in this Petition, and the Respondents must be restrained from proceeding with the show cause notice pending its final disposal. 7. Mr Singh submitted that the Narcotics Commissioner or the Assistant Narcotics Commissioner has already opined that ADCOTE 545S requires a NOC before it is exported. He also referred to the order made by a Co-ordinate Bench of this Court on 13 October 2017 in Writ Petition No. 10730 of 2017 in the context of the seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein. (2) Without prejudice to the generality of the power conferred by sub-section (1), an order made thereunder may provide for regulating by licences, permits or otherwise, the production, manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption, use, storage, distribution, disposal or acquisition of any controlled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ketone . Therefore, the Petitioner contends that as long as the Petitioner is not exporting MEK, no NOC is required from the Narcotics Commissioner. Mr Singh has argued that ADCOTE 545S may contain MEK, but it is not itself MEK. He also claimed that where a particular product is only one of the components of its salts or preparations, entries 4, 5, 6, 8, 11, 13 and 16 have said so in clear terms. According to him, the fact that there is no such reference in Entry 10 shows a clear intention to exclude any salts or preparations of MEK or any products containing MEK, irrespective of whether MEK was readily severable. 19. On the other hand, Mr Kumar contended that Section 9-A of the NDPS Act was intended to cover us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioners to show cause and convince the customs authorities of the merits of the matter. We are satisfied that this matter would require an investigation into factual aspects. Some interpretative exercise regarding Schedule-B in the context of the statutory provisions may also be necessary. This Court must not carry out such exercise in a challenge to the show cause notice itself. 25. The order made by a Co-ordinate Bench of this Court on 13 October 2017 in Writ Petition No. 10730 of 2017 was in the context of the seizure of specific goods that may have contained the items specified under Schedule-B. However, nothing in the said interim order discusses or suggests that such matters can be or must be decided no sooner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-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 even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine. The writ petitioner should invariably be directed to respond to the show cause notice and take all the grounds that may now be highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which the recipient of the notice can even urge, and such issues also can be initially adjudicated by the authority issuing the very notice, before the aggrieved party approaches the Court. 31. In Union of India and others Vs. Coastal Container Transporters Association and others (2019) 20 SCC 446 the Hon ble Supreme Court held that where the case was neither of lack of ..... 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