Research › Browse › Judgment

Madras High Court · body

1996 DIGILAW 1125 (MAD)

Swarna Industries v. Commissioner of Central Excise (Prev. ), Madras

1996-11-06

S.M.ABDUL WAHAB

body1996
Judgment :- These three Writ Petitions contain identical prayers for certiorarified mandamus, to quash the challan dated 3-10-1996, being purported assessment of basic duty of excise for the period 1994-95 and 1995-96, and direct the third respondent to return the documents seized from the petitioner in letter dated 24-9-1996. 2.The brief facts of the writ petitions are as follows :- The petitioner in each writ petition is a manufacturer of aluminium circles. Aluminium circles of the thickness of and exceeding 0.2 mm was exempt from excise duty. The petitioner being a Small Scale, it was clearing aluminium circle products. It was entitled to exemption under the General Notification 1/93-C.E., dated 28-2-1993. There was search on 24-9-1996 by the third respondent. There was seizure of some documents under letter dated 24-9-1996. Subsequent to the seizure, when the petitioner approached the third respondent, he directed the petitioner to pay the duty as per the challan. There is no assessment at all. Hence, the writ petitions. 3.The contention urged by the learned Counsel for the petitioner is that the challan given to the petitioner by itself constitute an order of demand. If so construed the same will be in violation of the principles of natural justice. he also contended that before issuing notice, there must be proceedings initiated under Section 11 of the Central Excises and Salt Act, 1944. 4.The challan, according to the petitioner, tantamounts to a demand. The learned Counsel for the petitioner relies upon the entries of the challan in Column No. 1, which are as follows :- Full particulars of the remittance and authority, if any (PLA/Tariff item/Order No. & Date, etc./name of the commodity manufactured). Being the excise duty on the Aluminium circles cleared without payment of excise duty during the years 1994-95 and 1995-96 as pointed out by the Central Tax Excise Hqrs. Preventive Unit, Madras-34. A reading of the printed words as well as the typed words in Column No. 1, would not lend any one to come a decision that there is a demand contained in the said Column. The learned Counsel for the petitioner did not bring to my notice Treasury Rule 92 to find out whether the said Rule has an indication in support of the contention of the counsel for the petitioner. The learned Counsel for the petitioner did not bring to my notice Treasury Rule 92 to find out whether the said Rule has an indication in support of the contention of the counsel for the petitioner. He was also not in a position to produce any covering letter to the challan from the office from where the challan was obtained or issued. In the circumstances, I am not in a position to accept the contention of the learned Counsel for the petitioner that the challan by itself amounts to a demand. It is also worthwhile to mention that the challan does not contain any demand or direction to pay the amount mentioned in it. Further, there is no indication that the non-payment of the amount covered in the challan would will be visited with any civil or penal consequences. Hence it is very difficult to accept the contention of the learned Counsel for the petitioner that the challan by itself is a demand. 5.As I have found that the challan by itself is not a demand, there is no question of violation of principles of natural justice. It is well-settled and only when a person is threatened with civil or criminal consequences for failure to comply with any direction or order must be put on notice of such direction [or] order. Therefore, the abovesaid contention of the learned Counsel for the petitioner is not acceptable. Further contention raised by the learned Counsel for the petitioner is that the petitioner was informed that only after payment of the amount mentioned in the challan, proceedings under Section 11A, etc., will be initiated. There is no substance in the said contention, as there is no indication in the challan or in any document to the said effect. 6.Section 11A of the Central Excises and Salt Act provides for issuing a notice and conducting enquiry before proceeding further. Therefore, it cannot be presumed that the authorities concerned have not chosen to proceed under Section 11A of the Act merely because the challan has been obtained from the office or issued from the office. Mr. K. Jayachandran, Additional Central Government Standing Counsel arguing for the respondents contended that a perusal of the challan does not indicate that it is a demand, and the proceedings have yet to be commenced. Mr. K. Jayachandran, Additional Central Government Standing Counsel arguing for the respondents contended that a perusal of the challan does not indicate that it is a demand, and the proceedings have yet to be commenced. In the circumstances, I feel that the contention of the learned Counsel for the petitioner that the challan tantamounts to a demand and the apprehension of the petitioner that he will be met with penal consequences, if he does not pay the amount is unwarranted. As and when proceedings are initiated, it is open to the petitioner to move the Court for appropriate relief, if the provisions of the Act are not complied with or if there is any violation of the principles of natural justice. Under these circumstances these writ petitions are dismissed. However, there will be no order as to costs. Consequently, W.M.P. Nos. 21224, 21225 and 21227 to 21230 of 1996 are also dismissed.