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2002 DIGILAW 91 (CAL)

TATA IRON AND STEEL CO. LTD. v. UNION OF INDIA

2002-02-13

AMITAVA LALA

body2002
A. LALA, J. ( 1 ) THIS writ petition is made, inter alia, praying relief in the nature of writ of mandamus commending the respondents, their servants, agents, subordinates and/or assigns to act and proceed in accordance with law in respect of the present investigation being conducted by them against the petitioner No. 1 and in the event any central excise duty is found payable by the petitioner No. 1 to issue show-cause notice or notices-cum-demand in accordance with law and adjudicate the case or cases after giving all reasonable opportunities to the petitioners of being heard in the matter. The consequential reliefs are sought for in respect of the alleged exercising coercion, undue influence, torture and/or from taking any steps prejudicial to the rights, interest and liberty of the Officers, Directors and Chairman of the petitioner No. 1, company in any manner whatsoever. ( 2 ) A writ of certiorari is also asking for production of documents relating to evasion of Central Excise duty being conducted by the Officers of Central Excise Intelligence, Director General of Central Excise Intelligence at Jamshedpur to this Court. ( 3 ) AN interim order is sought to restrain the respondents from compelling the petitioner No. 1 to pay the Central Excise Duty on ad-hoc basis without issuance of show-cause notice by exercising coercion, undue influence, torture and threats of arrest of the Chairman of the petitioner No. 1 and to deposit an amount of Rs. 4. 30 crores in a separate account and not to take any prejudicial step to the interest of the petitioners. ( 4 ) IT appears to this Court that the summons were issued under section 14 of the Central Excise Act, 1944 at Jamshedpur, Jharkhand. The payments were made and/or deposited in the respective offices of the Central Excise at Jamshedpur, Jharkhan. The investigation was proceeded by the Officers of the office of the Central Excise at Jamshedpur, Jharkhan. Naturally, a question arose as to how the writ jurisdiction of this Court would be invoked. The payments were made and/or deposited in the respective offices of the Central Excise at Jamshedpur, Jharkhan. The investigation was proceeded by the Officers of the office of the Central Excise at Jamshedpur, Jharkhan. Naturally, a question arose as to how the writ jurisdiction of this Court would be invoked. In reply thereto, the learned senior counsel appearing in support of the petitioners has drawn my attention to the paragraph 26 of the writ petition which is quoted as follows :-"the petitioner's state that the instant case started with searches and seizure of documents, registers and files maintained at the depot of the petitioner No. 1 at Howrah within the jurisdiction of this Hon'ble Court. Similar searches and seizures were conducted throughout India on all the depots and offices of the petitioner No. 1. As the marketing Head Office of the petitioner is situated in Kolkata all relevant records were furnished in the course of investigation from the said Head Office. Summons under section 14 of the Central Excise and Salt Act was served on the Chief Executive, Metal Junction at his office situated at 52 Tata Centre, Chowringee, Kolkata. Central Excise duty amounting to Rs. 4. 30 croroes collectively was paid under the orders of the marketing Head Office situated at Kolkata. The present investigation was started by the Officers of the Directorate of Central Excise Intelligence under the orders, and control of the Additional Director Intelligence, Directorate General of Central Excise Intelligence, East Zonal Unit, 4/2, Karaya Road, Kolkata-700 017. In fact reports regarding the investigation are being submitted through the Deputy Director, Directorate General of Central Excise Intelligence, Jamshedpur to his superior the Additional Director General Intelligence Kolkata. In the premises a part of cause of action has arisen within the jurisdiction of this Hon'ble Court, and as such, this Hon'ble Court has jurisdiction to entertain this application and try the same. " ( 5 ) ACCORDING to the petitioners, since this Court has the territorial jurisdiction over and in respect as above this Court can invoke the same under Articles 226 (2) of the Constitution of India. " ( 5 ) ACCORDING to the petitioners, since this Court has the territorial jurisdiction over and in respect as above this Court can invoke the same under Articles 226 (2) of the Constitution of India. The petitioners further contended that in view of the well celebrated judgment of the Privy Council Re : Nazir Ahmed v. King-Emperor, reported in AIR 1936 Privy Council 253 (2), where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. The actions as taken by the authority at Jamshedpur are contrary to law which affects the right and interest of the person governing the control of the company situates at Calcutta. Therefore, this Court has the jurisdiction to entertain this application and determine the same. Moreover, factual steps which have been taken by such authority are contrary to law. The summons for issuance of evidence and production of documents are given under section 14 of the said Act but deposit of excise duty in case of not being levied or has been short levied or short paid or erroneously refunded etc. will have to be determined first and then to be paid as per the scope and ambit under section 11a of the Central Excise Act, 1944. Therefore, the contention of the petitioners is that a cart cannot be put before the horse. The stages of recovery will come after due determination of the cause for issuance of summons. ( 6 ) FACTUALLY, the petitioners' case is that there was a difference of goods in between the place of despatch and the place of receiving the same. There is a rate of tolerance making the same plus minus as per the circular being part of the petition to the extent of 1%. The computerised system has been adopted by the company in making calculation but at the destination point it has been done mechanically. Therefore, they have a very good case to reach within the scope and ambit of the tolerance point but in spite of the same the petitioners made payment of Central Excise duties previously for a sum of Rs. 80 lakhs and subsequently to the tune of Rs. 3. 50 crores which according to them were extracted by the Governmental authority by way of illegal means. 80 lakhs and subsequently to the tune of Rs. 3. 50 crores which according to them were extracted by the Governmental authority by way of illegal means. ( 7 ) THE learned counsel appearing for the Union of India contended before this Court that this writ jurisdiction of the Calcutta High Court cannot be invoked since the show-cause notice was issued from outside the jurisdiction i. e. at Jamshedpur, Jharkhand. Not only in the earlier decision but in the latest decision of the Supreme Court in the case of Union of India and Ors. v. Anadi Exports Ltd. and Anr. , reported in AIR 2002 SC 126 , it was held that the jurisdiction of the Writ Court under Article 226 of the Constitution of India has to be invoked where the nexus with the lis is available. Therefore, following the ratio of such judgment of the Supreme Court it can be construed that this High Court has no jurisdiction. From the factual aspect of the judgment in that case as regards jurisdiction is as follows :-"the petitioners carry on business of export and import from Ahmedabad. The orders for export and import are placed from and executed from Ahmedabad. The documents and payments for export and imports are sent/made at Ahmedabad. The credit of duty claimed in respect of exports were handled from Ahamedabad since export orders were received at Ahmedabad and payments also received at Ahmedabad. The non-granting and denial of utilisation of the credit in the said Pass Book shall effect the business of the petitioners at Ahmedabad. Respondent Nos. 1 to 3 have regional offices at Ahmedabad. A substantial part of the cause of action has arisen within the jurisdiction of this Hon'ble Court. This Hon'ble Court has therefore, jurisdiction to entertain, try and dispose of this petition. " ( 8 ) APART from that, he contended before this Court that if there is any cause for issuance of summons or investigation, normally the Writ Court does not interfere with the same. It has been discouraged by the Supreme Court in a judgment Re : Union of India v. Tata Engineering Locomotive Col Ltd. , reported in 1997 (96) ELT 209 (SC ). ( 9 ) THAT apart, there is a clear case of suppression of material facts. It has been discouraged by the Supreme Court in a judgment Re : Union of India v. Tata Engineering Locomotive Col Ltd. , reported in 1997 (96) ELT 209 (SC ). ( 9 ) THAT apart, there is a clear case of suppression of material facts. Previously, the petitioner No. 1, company has written a letter to the Director General, Central Excise Intelligence, Ministry of Finance, Government of India regarding certain irregularities in respect of payment of Central Excise duties on 13. 11. 2001 which was answered by them on 29. 11. 2001 wherein the same has been found to be not acceptable. From the later part of the letter of the authority it appears that investigation was sought for. ( 10 ) I carefully considered the rival contentions of the parties even at the stage of 'listed Motion' since the question of jurisdiction is the prima facie factum for the Court to enquire irrespective of any factual strength and other rival contentions in the merit. According to me, the writ petition is misdirected one. Here, the primary dispute is in respect of the summons and investigation conducted or to be conducted by the authority outside the writ jurisdiction of this Court. The parties are acted upon giving response to the enquiry outside the jurisdiction. The authorities are asking for co-operation with the investigation against the petitioners where it is going on. Therefore, they have acted upon such proceeding by the authorities therein. It is to be remembered that assumption of jurisdiction is depending upon facts and circumstances of each case. In the aforesaid judgment cause of action was denial of credit of passbook occurred within the jurisdiction of the High Court of Gujarat was found an appropriate jurisdiction which is factually distinct and difference from the present one. It is also to be remembered that invocation of wrong jurisdiction of the writ Court can outrage the right to writ jurisdiction which is otherwise available for the parties. There one has to be very careful before invocation of the same. Moreover, convenience or incontinence of the adjudicating authorities cannot be ignored particularly when the same is acted upon by the petitioners. Therefore, in coming to a question of jurisdiction the principle of forum convenience has a big role to play balance. There one has to be very careful before invocation of the same. Moreover, convenience or incontinence of the adjudicating authorities cannot be ignored particularly when the same is acted upon by the petitioners. Therefore, in coming to a question of jurisdiction the principle of forum convenience has a big role to play balance. I am acquainted with the principle that where the nexus with the lis is available that the Court has the jurisdiction but a mere correspondence to the office of the petitioners cannot be said to be nexus with the lis. ( 11 ) SO far as first part of paragraph 26 of the writ petition is concerned, although documents, registers and files are purported to be maintained at the depot of the petitioner No. 1 at Howrah but it is a place from where the goods were despatched but the goods where received and accepted in lesser quantity is place for investigation. Therefore, the cause of action arose outside the Court and the authority has rightly invoked the same. ( 12 ) THEREFORE, taking into totality of the matter I cannot entertain this writ petition and the same is, accordingly, dismissed on the ground of jurisdiction. However, since the order of dismissal is made on the ground of jurisdiction, it cannot be said by the Court that the petitioners will not be entitled to challenge before any other Court or forum any action on merit. Therefore, they are entitled to do so irrespective of the result of this writ petition. All points raised before this Court are kept open to be decided by the appropriate Court or forum, if they are so advised to invoke the same. However, no order is passed as to costs. Let urgent xerox certified copy of this order, if applied for, be given to the learned counsel for the parties within a period of fortnight from the date of putting the requisites. Petition dismissed