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TMI Blog1989 (1) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly when the intelligence wing of the respondent stated that the second petitioner had imported printing units which are having much lower output than the one declared to Customs Department and has wrongly availed of the benefit of the Customs Notification No. 114/80 dated 19-6-1980, the matter was taken up for necessary investigation. After close investigation of the matter in detail, a show cause notice running about 50 pages, was issued to the petitioners and others under the proviso to Section 28(1) of the Customs Act, 1962 and under Section 124 of the Customs Act, 1962 on 29-9-1987 calling upon them to show cause as to why they should not be held liable to pay the differential duty of Rs. 29,99,430.30 and that why the imported units installed by the petitioners in the premises should not be confiscated and penalty imposed on the petitioners and others under the provisions of the Customs Act, 1962. In the show cause notice, details of evidence based upon the allegations which were sought to be sustained, were indicated in Annexures to the said notice and enlisted in the Appendix. An interim reply was given on 15-7-1988. The first hearing was held by the respondent on 21-10-198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ports through which the said imported machines were cleared. It is further claimed in the counter-affidavit that the request of the petitioners to issue the summons under Section 108 of the Customs Act, 1962 is to be considered legally and has to be examined whether such issuance of the summons could be sustained and that the summons issued under Section 108 of the Customs Act is only for proper investigation to be conducted for a preliminary enquiry and the same cannot be issued by the department in the adjudication proceedings. It is further claimed in the counter affidavit that at the stage of adjudication, the department can only rely upon the documents or statements that are referred to in the show cause notice, that Section 108 of the Customs Act does not empower or meant for the adjudicating authority to issue summons to some third persons not involved in the case and that the respondent has to consider the facts and evidences in the case for arriving at a decision whether it is necessary to invoke the powers as claimed by the petitioners. It is claimed in the counter-affidavit that the respondent has not taken any decision in this behalf. In the counter-affidavit, it is fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consideration of documents not pertaining to the subject imports would be beyond the scope of the adjudication proceedings. It is further claimed in the counter affidavit that whether the goods imported by the petitioners would attract the benefit of the Customs Notification No. 114/80 and whether the machines imported by the petitioners satisfy the conditions of the Customs Notification 114/80 or not and that for this purpose the documents and the statements given by the petitioners have to be considered. 4. By consent of both parties, the main writ petition is taken up for final disposal, after admitting the writ petition. 5. Mr. Govindaswaminathan, the learned counsel for petitioners submits that the limited request of the petitioners is to give a hearing on the application filed by the petitioners on 15-11-1988, with regard to the summoning of the documents in connection with the adjudication. The learned counsel further submits that the said documents can be summoned at the petitioners' costs and that they are necessary for the purpose of giving a detailed reply to the show cause notice. The sum and substance of the argument of the learned counsel for petitioners is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 and the petitioners have given an interim reply. The department has also given an appendix to the show cause notice with regard to the materials on which the department relies upon. It is the case of the petitioners that they need certain other documents and witnesses, to give a detailed reply. As rightly pointed out by the learned Advocate General, it is open to the petitioners to produce necessary evidence on their behalf, so to pay to produce certain other documents or witnesses in their favour. But, in the instant case, the petitioners require certain documents and witnesses to be summoned for the purpose of a fair adjudication of the case. For that purpose, the petitioners have filed an application on 15-11-1988 under Section 108 of the Customs Act to call for certain other documents and certain witnesses. It is open to the department either to reject or to allow the application filed by the petitioners. At this stage, it is unnecessary to go into the question whether the petitioners are entitled to invoke under Section 108 of the Customs Act, 1962. Here is a quasi judicial Authority before whom an application is filed during the course of an adjudication pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time ...." So also, in paragraph 14 it is stated thus: "..... The personal hearing fixed to 23-12-1988 was only for purposes of considering the case taken as a whole and not as projected by the petitioners and nowhere in the notice of hearing it is stated nor there was any indication given by me that the application filed by the petitioners dated 15-11-1988 will not be considered..." In view of the statements made by the respondent in the counter affidavit as stated above. I do not think it is necessary to issue a writ of mandamus at this stage. So also, I do not feel it is necessary to refer to the decisions cited by the learned Advocate General, at this stage with regard to the pro-position whether personal hearing is to be given or not. As seen from the counter affidavit, it is clear that the respondent has not taken any decision with regard to the application filed by the petitioners. As such, the writ of mandamus is not a writ of course, or a writ of right, but is as a rule a matter for the discretion of the Court. I am not inclined to issue a writ of mandamus as prayed for. 8. I am of the view that if the petitioners are aggrieved by any order passed by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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