SHEET WP No.584 of 2008 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE RDB INDUSTRIES LTD & ANR.
Versus THE COMMISSIONER OF CENTRAL EXCISE,KOLKATA-II & ORS BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK Date : 29th September, 2016.
Mr.Mr.Mr.Mr.Mr.Mr.Mr.Bhaskar Sen, Sr.Adv.Joydeep Kar, Sr.Adv.A.Banerjee, Sr.Adv.I.Roy, Adv.S.Banerjee, Adv.D.Choudhury, Adv.S.Choudhury, Adv.…for the petitioners Mr.R.N.Das, Sr.Adv.Ms.Aishwarya Rajyashree, Adv.…for the respondents The Court : The petitioner has challenged the order of adjudication of Central Excise dated January 29, 2008.
Learned senior Advocate for the petitioners has submitted that the impugned order of adjudication is bad due to violation of the principles of natural justice.
He has pointed out that, copies of documents relied upon in the adjudication process were not given to the petitioners in spite of requests thereof.
He has referred to an order passed in the earlier writ petition filed by the petitioner where certain directions were issued by the Writ Court with regard to the documents concerned.
He has referred to the impugned order where the adjudicating authority has relied upon the evidences given by co-accused.
He has submitted that such deponent was not allowed to be cross-examined.
He has relied upon 2015 (322) E.L.T.462 (Cal.) (Soumendu Saha versus Union of India).All India Reporter 1952 SC159(Kashmira Singh versus State of Madhya Pradesh) and (2008) 16 Supreme Court Cases 537 (Vinod Solanki versus Union of India & Anr.) in support of his contentions.
Learned senior Advocate for the petitioner has referred to the impugned order where it discusses the forensic report.
He has submitted that, the forensic report was not made over to the petitioner.
The petitioner was not aware of such couRs.of action being undertaken by the department.
The petitioner was not given an opportunity to crossexamine the forensic expert.
Referring to Section 11A of the Central Excise Act learned senior Advocate for the petitioner has submitted that, the claim made by the department in the show cause notice is barred under the provisions thereof.
Learned senior Advocate for the petitioner has contended that, the Excise department has posted personnel at the factory of the petitioner on round the clock basis.
He has referred to the attendance register of such personnel.
He has contended that there is no allegation of collusion between the petitioner and such personnel of the department.
Therefore there is no question of evasion of any excise payable by the petitioner in respect of the goods concerned.
Learned senior advocate appearing for the department has referred to the affidavit-in-opposition filed on behalf of the department and has submitted that, the impugned order is correct and that it does not warrant any interference.
I have considered the rival contentions of the parties and the materials made available on record.
The impugned order is appealable under Section 35B of the Central Excise Act, 1944.
The petitioner was informed of the impugned order by a letter dated January 29, 2008.
Such letter contains the statement that the impugned order is appealable.
Despite a statutory appeal being available to the petitioner, it has chosen to move the writ jurisdiction.
A Writ Court is not an appellate authority.
A Writ Court is not called upon to reappraise the entire evidence to come to a finding of validity or lack of its impugned order.
The scope of enquiry of a Writ Court with regard to a decision rendered by an authority acting under a statute particularly when there is a statutory appeal available, is very restricted.
It has been judicially noticed that a writ, in spite of availability of an alternative remedy is maintainable, where there is a violation of the principles of natural justice or where the authority concerned has acted without jurisdiction or where there is a demonstrable perversity in the impugned order or where the vires of the Act is under challenge.
In the present case the challenge levelled against the impugned order is the allegation of violation of the principles of natural justice.
On the violation of principles of natural justice three areas have been identified by the petitioner.
The fiRs.area is that documents which have been relied upon by the department in the adjudicating process were not made available to the petitioner despite requests thereof being made.
True the petitioner had written letters to the department seeking the documents which were sought to be relied upon.
In response to such letters the department has given a detailed response which shows that, some of the documents were no longer available with the department to be made over to the petitioner.
The department has identified the parties with whom such documents are available.
The petitioner therefore was in the know that some of the documents were not available with the department to be made over to the petitioner and the persons with whom they were available.
In spite of such knowledge the petitioner did not take any steps for the purpose of enforcing the production thereof from the third parties with whom they were available.
It is not the case of the petitioner that, the process of making the third parties produce the relevant documents were not available in law.
Therefore it would not lie in the mouth of the petitioner to contend that, the documents sought to be relied upon were not made over to the petitioner and therefore there is a breach of principles of natural justice.
The petitioners were informed of the time and location of such documents.
Despite such information, the petitioner did not take steps to have such documents produced.
The other area of the breach of principles of natural justice is that, the adjudicating authority has placed reliance on the evidence of the co-accused.
Kashmira Singh (supra) has dealt with a conviction in a murder case.
It has held that, a co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out.
It has prescribed caution in relying upon the evidence of a co-accused.
Vinod Solanki (supra) is a case relating to violation of Foreign Exchange Regulation Act, 1973 in a scenario where a confession which was recorded by force, coercion and threat was sought to be retracted.
In the present case the impugned order is detailed.
It has taken into consideration various aspects of the case including the documents available.
The impugned order does not rely upon the evidence of a co-accused only.
It has taken into consideration the entire gamut of the evidence placed.
The allegation is of evasion of excise duty.
The Directorate General of Anti Evasion (DGAE) acting on an actionable information had undertaken an investigation into evasion of duty the way of undeclared manufacture and clandestine removal of excisable goods.
A search was conducted on October 24, 1996 by the DGAE at the factory, office and godown of the petitioner’s C & F agent and at other places.
During Investigation the DGAE had unearthed a hidden godown at a distance of 50 metres of the officially declared godown.
Excusable goods of a value of Rs.62,24,469/- was recovered therefrom.
That apart excisable goods of other value and unaccounted cash were also recovered.
Documents were seized.
The department is of the view that the petitioner is guilty of planned evasion of duty of Rs.24,32,35,320/- during the period October 1994 to September, 1995.
The impugned order narrates how the evasion was detected.
The detection of the evasion and the findings with regard thereto have not been dislodged by the petitioner in the present petition.
In any event, the petitioner had chosen not to file an appeal against the order.
The Appellate Authority was better equipped to look into the evidence produced before the adjudicating authority to appreciate the evidence led before the adjudicating authority.
In Soumendu Saha (supra) it has been held, that when the prosecutor had furnished a report from an expert and did not make over the copy of the same to the assessee, it visits the proceeding with procedural illegality.
In the present case the forensic report is discussed in page 603 of the writ petition.
It relates to forgery of the invoices.
The department had referred to the copies of the official invoices and copies of the forged invoices to the Government Examiner of Questioned Documents, Directorate of Forensic Sciences, Ministry of Home Affairs for their opinion and report.
The report is available to the petitioner, at least after the impugned order.
Nothing has been placed on record to suggest that the report of the forensic expert is wrong.
In Soumendu Saha (supra) apparently the only basis for adjudication was the report which was not given to the petitioner therein.
In the present case it is not merely the forensic report but the conspectus of the facts and the documents that were taken into consideration by the adjudicating authority.
The plea of limitation has been discussed in the impugned order.
The impugned order finds that, the petitioner is guilty of suppressing documents during investigation and evasion of payment of appropriate duty on excisable goods.
Nothing in Section 11A of the Central Excise Act permits the Court to come to a different finding, in conspectus of the facts of the present case, that the claim of the department is barred under Section 11A.
The impugned order narrates as to how the petitioner had gone about their business of concealing and suppressing the transactions from the department.
It was discovered at a later stage.
The mechanism by the petitioner for concealment and evasion used was so well-organised that it had evaded the notice of the personnel posted at the factory premises of the petitioner.
Therefore the mere fact that the personnel of the Excise was officially posted in the factory premises and that there is no allegation of omission ipso facto does not absolve the petitioner from a charge of evasion of duty.
In such circumstances, I find no merit in the present writ petition.
W.P.No.584 of 2008 is dismissed.
No order as to costs.
The interim order stands vacated.
Learned senior Advocate for the petitioner seeks stay of the order.
The same is considered and refused.
(DEBANGSU BASAK, J.) TR/