The Commissioner of Central Excise v. Sun Pharmaceuticals Industries Ltd. & Others
2006-01-17
C.NAGAPPAN
body2006
DigiLaw.ai
Judgment :- (Writ Petition filed under Article 226 of the Constitution of India praying for issuance of writ of certiorari to call for the entire records pertaining to the impugned order No.44/2004-Cus dated 29.9.2004 passed by the Hon’ble Settlement Commission, Customs and Central Excise, Mumbai and quash the same.) The writ petition is filed to quash the interim order dated 29.9.2004 passed by the Settlement Commission, Customs and Central Excise, Mumbai. 2. The writ petition was admitted on 4.2.2005 and notice was ordered. Counter was filed by respondents 1 to 4, 6 to 13. 3. The petitioner herein issued show cause notice dated 24.9.2002 to respondents 1 to 13 herein alleging that the fifth respondent in collusion with the first respondent, while engaged in the manufacture of bulk drugs, committed willful act of evasion of duty and the other respondents abetted the same and have contravened the provisions of Sections 68 and 71 of the Customs Act rendering themselves liable for the payment of customs duty of Rs.1,71,91,550/- The respondents challenged the show cause notice before this Court in W.P.No.6157 of 2003 and this Court, by order dated 24.9.2003, directed the respondents herein to send a reply to the show cause notice raising all issues. 4. The first respondent herein approached the Settlement Commission, Additional Bench at Chennai by filing an application under Section 127B of the Customs Act and it also filed a Miscellaneous Application seeking for transfer of the case from the Additional Bench, Chennai to the Additional Bench of Mumbai Settlement Commission and the same was opposed. The Settlement Commission, Chennai Bench dismissed the Miscellaneous Application for transfer. 5. Subsequently, the first respondent herein filed a petition before the Settlement Commission, Customs and Central Excise, New Delhi Principal Bench seeking for transfer of the case filed by it before the Additional Bench at Chennai to the Additional Bench at Mumbai. The petitioner herein filed a report objecting to the plea of transfer and the Settlement Commission considered the written and oral submissions of both sides and passed order dated 23.3.2004 transferring the case pending before the Settlement Commission Additional Bench at Chennai to the Additional Bench at Mumbai for disposal.
The petitioner herein filed a report objecting to the plea of transfer and the Settlement Commission considered the written and oral submissions of both sides and passed order dated 23.3.2004 transferring the case pending before the Settlement Commission Additional Bench at Chennai to the Additional Bench at Mumbai for disposal. Thereafter, the Settlement Commission, Mumbai has passed the interim order, in the admission hearing of the case, on hearing both parties and held that the first respondent herein fulfils all the conditions laid down under Section 127B of the Act and the applications are to be proceeded with under Section 127C(1) of the Act and also directed the first respondent to pay the admitted amount of duty of Rs.67,40,290/- within thirty days. That order is under challenge. 6. A preliminary objection has been taken by Mr. R. Thiagarajan, the learned Senior Counsel appearing for the first respondent that this Court has no jurisdiction to entertain the writ petition and it has to be dismissed in limine on that ground. He also relied on a decision of this Court in PARAS CORPORATION v. UNION OF INDIA ( 1992 (61) E.L.T. 409 (Mad.). 7. Mr.K.Veeraraghavan, the learned Senior Central Government Standing Counsel appearing for the writ petitioner submitted that the entire cause of action arose at Madras and this Court has got jurisdiction and the petitioner cannot be prevented from challenging the impugned order here and relied on the decisions of the Apex Court in OIL AND NATURAL GAS COMMISSION v. UTPAL KUMAR BASU AND OTHERS ((1994) 4 Supreme Court Cases 711) and Kusum Ingots & Alloys Ltd. V. Union Of India ( 2004 (168) E.L.T. 3 (S.C.) 8. I am inclined to decide the question raised as the preliminary objection and so I am not to enter into the merits of the case. 7. The Customs and Central Excise Commission is a Statutory Body constituted for settlement of cases and Section 127 of the Customs Act deals with the same and Benches have been constituted in various places in the country. Any interim order as well as the final order passed by the Settlement Commission is amenable to the writ jurisdiction of the High Court and the power of judicial review is available. 8.
Any interim order as well as the final order passed by the Settlement Commission is amenable to the writ jurisdiction of the High Court and the power of judicial review is available. 8. The point for consideration is as to whether in the facts and circumstances of the case, this Court can entertain this writ petition against the interim order passed by the Settlement Commission, Mumbai Bench. 9. It is true that the alleged evasion of duty and the issuance of show cause notice giving rise to cause of action took place within the jurisdiction of Chennai Bench and in fact, the original application was filed before the Settlement Commission, Chennai Bench only. What happens subsequently is the relevant factor to be taken into consideration. 10. The first respondent, who took over the fifth respondent Drug Company, is having its Corporate Office in Mumbai and it filed Miscellaneous Application before the Chennai Bench seeking for transfer of the case to Mumbai Bench of the Settlement Commission. The petitioner herein filed a counter opposing the transfer and the Chennai Bench dismissed the Miscellaneous Application seeking for transfer. Thereafter, the first respondent preferred a petition for transfer before the Principal Bench of the Settlement Commission at New Delhi and the petitioner herein filed a report stating that the substantial cause of action arose only within the territorial jurisdiction of the Chennai Bench and opposed the transfer. The Principal Bench considered the written and oral submissions of both sides and held that to dispel the apprehension in the minds of the applicants, in the interest of justice and fair play, the request for transfer is acceded to and ordered the transfer of the case from the Additional Bench, Chennai to the Additional Bench, Mumbai for disposal. The petitioner herein has not challenged that order and has allowed it to become final. 11. When the case came up before the Settlement Commission, Mumbai Bench for admission hearing, both the parties were heard and the Bench passed an elaborate order considering the various contentions raised by both sides and held that the applicant therein, viz., the first respondent herein, fulfils all the conditions laid down under Section 127B of the Customs Act and allowed the application and directed the applicant therein to pay the admitted amount of duty.
The learned Senior Counsel appearing for the first respondent submitted that the first respondent has paid the admitted amount of duty and the further proceedings in the main case went on during the hearing on 28.12.2005 and a Commissioner has been appointed to conduct verification. 12. The petitioner having failed to challenge the order of the Principal Bench of the Settlement Commission, New Delhi transferring the case from Chennai Bench to the Mumbai Bench and having participated in the further proceedings which are in progress before the Mumbai Bench, cannot be permitted to challenge the interim order of Mumbai Bench before this Court. I am of the view that this Court cannot entertain the writ petition filed by the petitioner under Article 226 of the Constitution of India and proper remedy would be to move the High Court at Mumbai, if so advised. 13. Therefore, the writ petition stands dismissed. No costs. Connected WPMP.No.2696 of 2005 is also dismissed.