9911796707
TMI Blog2005 (3) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... non est and liable to be quashed and set aside. Issuance of show cause notice with material facts and particulars is a basic requirement of principles of natural Justice. Underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. Thus, the show cause notice must contain all necessary allegations with material particulars forming cause of action for the action initiated. The contents of show cause notice, thus, cannot be supplemented by an additional affidavit, especially, when the legality of the show cause notice is being tested in the Court of law. Of course, issuance of additional or supplementary show cause notice may be permissible in a given case subject to the compliance of law for the time being in force but, certainly, not the affidavit at the stage when the matter is in the Court for judicial scrutiny of the very same show cause notice. So far as the submission to relegate the parties to the departmental adjudication is concerned, the submission at this stage is misplaced. In our view, having entertained these petitions on merits this Court will not be justified in dismissing them as not maintainable on the ground of not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Rule 209A of the said Rules. 4. The aforesaid show cause notices (six numbers) issued to both the petitioner-firms carrying similar allegations and charges are subject matter of challenge in these petitions filed under Article 226 of the Constitution of India. Submissions : 5. At the outset, Mr. R.V. Desai, learned senior counsel appearing for the Revenue raised a preliminary objection to the maintainability of the petitions contending that the show cause notices are open to challenge before the writ court only on the ground that even if the facts are assumed to be correct no case is made out against the noticees. According to him, no such case has been made out in these petitions. Apart from this, Mr. Desai submits that by no means the notices in question could be said to be non est in the eye of law since they were issued by the authorities having jurisdiction to issue such notices. He submits that the petitioners can reply to the show cause notices and contend before the adjudicating authority that the show cause notices suffer from the jurisdictional error. He, thus, submits that these writ petitions are liable to be dismissed. Mr. Desai placed reliance on the Apex C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to confiscation under this Act or any rule made thereunder. Rule 209 of the said Rules reads as under : Rule 209A. Penalty for certain offences. - Any person who acquires possession of, or is any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding three times the value of such goods or five thousand rupees, whichever is greater. Rule 209 of the said Rules reads as under : Rule 209A. Penalty for certain offences. - Any person who acquires possession of, or is any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding three times the value of such goods or five thousand rupees, whichever is greater. Consideration : 9. It is true that in large number of cases, the Apex Court has deprecated the practice of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it was observed that the orders of assessment rendered under tax laws should be tested under the relevant Act and in no other way. In Shyam Kishore v. Municipal Corporation of Delhi - AIR 1992 SC 2279, it was observed that recourse to writ petition is not proper, when more satisfactory solution is available on the terms of the statute itself. The position is, therefore, clear that extraordinary and discretionary power under writ jurisdiction should be exercised with caution when statutory remedy is sought to be by-passed. 11. In Rashid Ahmed v. Municipal Board, Kairana - AIR 1950 SC 163, the Apex Court laid down that existence of an adequate legal remedy is a factor to be taken into consideration in the matter of granting writs. This view has been followed in another case, namely, K.S. Rashid Sons v. The Income Tax Investigation Commissioner - AIR 1954 SC 207; wherein the Apex Court reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words unless there are good ground therefor , which indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existence of these documents in the GTC records, one invoice under the cover of original GP-1 and other invoice of same serial number under the cover of zerox copy of the same GP-1 and then discounting of both from different banks and other financial institutions. From Balance sheets of GTC for the years 1988-89 to 1991-92 and schedules Annexed thereto, it appears that the above named Chartered Accountants had examined all such reasons. It appears that by dealing in this manner the records of GTC checked by them in relation to the transactions of cigarettes which were apparently removed clandestinely by the franchise units of GTC and which were purchased by GTC, the above named - Chartered Accountants have prima facie dealt with these excisable goods which they knew or had reasons to believe are liable to confiscation under the said Act or the Rules made thereunder thereby they have rendered themselves liable for penal action under Rule 209A of the said Rules. The above text of the notice nowhere made out a case that the petitioners in any way; at any time; had handled the excisable goods muchless dealt with the same with knowledge as required under Rule 209A of the Rules. If that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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