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2004 DIGILAW 1104 (ALL)

J S GUPTA AND SONS v. UNION OF INDIA

2004-05-21

MARKANDEY KATJU, R.S.TRIPATHI

body2004
Heard learned counsel for the parties. 2. The petitioner has prayed for a writ of certiorari to quash the impugned letters dated 6. 4. 2004 (Annexure-7 to the writ petition) and order dated 8. 4. 2004 (Annexure-6 to the writ petition) so for as it relates to the suspension of the facility of issuance of CT-3/procurement Certificate to the petitioner. The petitioner has also prayed for issuance of a direction to the respondents to restore the facility of CT- 3/procurement Certificate to the petitioners unit. 3. From the facts of the case it appears that the petitioner manufactures and exports metal-wares, glass- wares and imported wooden-wares. Since the petitioner earns foreign exchange for the Government by its export it has been granted full exemption of central excise duty for the import of raw materials, components, spares, consumables etc. The petitioner is also entitled to procure raw materials locally without payment of central excise duty. Obviously this exemption by the Central Government was granted because the petitioner was exporting his manufactured items and earning foreign exchange. 4. It is alleged by the respondents in their counter affidavit that the petitioner misused this facility and was not exporting all his manufactured items but was diverting much of it to the domestic market. It is alleged in paragraph 29 and 31 of the counter affidavit that on as many as 10 occasions the petitioner was issued letters asking them to appear before the authority concerned but they did not appear. However, in para 11 of the rejoinder affidavit it is stated that on three occasions their representatives had appeared. 5. We are not going into this disputed question of fact. There is no doubt that by issuing such notices the petitioners were given opportunity of hearing. Rules of justice cannot be placed in a straight jacket. They can not be construed in an over technical manner vide AIR 1985 S. C. 1416 (vide paras 97 and 101) Union of India v. Tulsiram Patel, J. T. 1994 (5) SC 280, The Maharashtra State Financial Corporation v. M/s Suvarna Board Mills & another, AIR 1973 SC 1260 Hira Nath Misra v. Rajendra Medical College, Ranchi. In JT 1994 (5) SC 280 a notice was issued by the Financial Corporation calling upon the respondent to pay the dues failing which possession will be taken. The Supreme Court held that no other show cause notice was required. In JT 1994 (5) SC 280 a notice was issued by the Financial Corporation calling upon the respondent to pay the dues failing which possession will be taken. The Supreme Court held that no other show cause notice was required. In AIR 1976 SC 1686 H. C. Sarin v. Union of India, the Supreme Court quoted from a judgment of Lord Denning in Rex v. Secy. of State for the Home Department ex parte Mughal, (1973) 3 All 796 who observed: "the rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke `the rules of natural justice so as to avoid the consequences. " 6. Hence the submission of learned counsel for the petitioner that the petitioner was not given a show cause notice stating in express terms that the petitioner should explain why his certificate should not be suspended/cancelled, does not appeal to us. The basic principle of natural justice is that there should be fairness. The opposite parties were certainly fair by issuing notices to the petitioner on as many as 10 occasions asking the petitioner to explain its version regarding the allegations of irregularities and breach of the conditions of the agreement. In our opinion this was sufficient compliance of natural justice. 7. In para 4 of the counter affidavit it is alleged that it has been found on investigation that the petitioner, instead of utilizing the imported raw material for manufacture of finished good for export has diverted these raw materials on a regular basis in contravention of the Customs Act and Central Excise Act. In para 6 it is alleged that duplicate sets of cash book/day book have also been recovered during the search which reveals transactions running into crores of rupees which do not find mention in that audited account. These entries in duplicates have been verified by employees of the petitioner, and have been countersigned by the parties of the firm. All these entries involving crores of rupees are unaccounted for, since most of the persons who have been shown to have made these payments have denied doing so. This raises serious doubts about the source of these funds which could well be the sale proceeds of the illegally diverted duty free goods. 8. All these entries involving crores of rupees are unaccounted for, since most of the persons who have been shown to have made these payments have denied doing so. This raises serious doubts about the source of these funds which could well be the sale proceeds of the illegally diverted duty free goods. 8. In para 11 of the counter affidavit it is alleged that enquiries so far held have revealed that the petitioner has removed duty free imported goods worth Rs. 1. 70 crores from their premises on the gate passes of a related firm M/s C. L. Gupta & Sons. The firm had ceased to exist in 2001 as per information received from the Director of Factories. 9. Sri Vikas Daga Ex. Sr. Manager (Purchase) at the relevant time admitted sale of 500 kg. of imported cobalt oxide worth Rs. 5. 50 lacs. Their chartered accountant after examination of the balance sheet of the last 3 years has admitted that there is no corresponding flow of job work charges from the petitioner firm to M/s C. L. Gupta & Sons. 10. Other details of clandestine removal of duty free imported goods or goods exempt from excise duty are mentioned in the counter affidavit and supplementary counter affidavit. 11. By order dated 14. 5. 2004 (Annexure-5 to the counter affidavit) it was stated that the department has withdrawn the facility of issuance of CT-3/procurement Certificate to the petitioner. This was done after an investigation and search vide paragraphs 25 to 32 and 38 to 46 of the counter affidavit: It is alleged in paragraphs 40 and 46 of the counter petitioner is not co-operating in the investigation. 12. On the facts of the case we are of the opinion that the ends of justice would be met if the petitioner is given a further post decisional hearing by the authority concerned and final order is passed in accordance with law after hearing him preferably within six weeks of production of copy of this order, before the authority concerned. 13. In the circumstances we direct that the petitioners representative should appear before respondent No. 2 with a copy of this order on 25. 13. In the circumstances we direct that the petitioners representative should appear before respondent No. 2 with a copy of this order on 25. 5,2004 along with all evidence which they want to produce on that date, or on such other date (or dates) to which the matter is adjourned, the authority concerned after hearing the petitioners representative shall pass appropriate orders clearly deciding whether the petitioner has been misusing the facility granted to him. If the respondent No. 2 thinks that the petitioner has not misused the certificate, the certificate will be restored, otherwise not. The petitioner will cooperate in the enquiry as ordered by us and shall not seek unnecessary adjournments. With the above observation the writ petition is disposed of. 14. Let a copy of this order be made available to the learned counsel for the parties on payment of usual charges within 48 hours. .