Madras High Court
M/S.P.R.P.Exports vs The Commissioner Of Central Excise on 27 November, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/11/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA W.P.(MD)No.3665 of 2006 and W.P.M.P.No.3921 and 3922 of 2006 and M.P.(MD)No.1 of 2008 M/s.P.R.P.Exports, Therkutheru Village, Melur Taluk, Madurai, Rep. by its Managing Partner, Mr.P.Palanichamy ... Petitioner Vs. 1.The Commissioner of Central Excise, Office of the Commissioner of Central Excise, Central Revenue Building, Bibikulam, Madurai-625 002. 2.The Joint Commissioner of Central Excise, Central Excise Madurai-II Division, Bibikulam, Madurai-625 002. 3.The Assistant Commissioner of Central Excise, Central Excise Madurai-II Division, Bibikulam, Madurai-625 002. 4.The Superintendent, Office of the Superintendent of Central Excise, Melur Range, Division II, Madurai-625 002. ... Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, to call for the records from the third respondent ending with the Show cause notice C.No.V/68/15/2/2006-adjn. dated 08.02.2006 and quash the same. !For Petitioner ... Mr.N.Kiruphakaran ^For Respondents ... Mr.C.Arulvadivel alias Sekar ASGI :ORDER
This writ petition has been filed to call for the records from the third respondent ending with the Show Cause Notice C.No.V/68/15/2/2006-adjn. dated 08.02.2006 and quash the same.
2. Heard the learned counsel for the petitioner and also Mr.C.Arulvadivel @ Sekar, Additional Solicitor General of India, appearing for the respondents.
3. A re'sume' and epitome of the case of the petitioner as stood exposited from the averments in the affidavit accompanying the writ petition as well as from the submissions made by the learned counsel for the petitioner could succinctly and precisely be set out thus:
The petitioner is an Export Oriented Unit, enjoying various tax concessions at the hands of the Government and other authorities. While so, the show cause notice dated 08.02.2006 was issued citing various items found set out therein as to why the petitioner should not be called upon to pay tax on those items.
4. Being aggrieved by and dissatisfied with such show cause notice, this writ petition is focussed on various grounds inter-alia run thus:
The authority had no jurisdiction to issue show cause notice in view of the glaring, palpable and pellucid provisions in support of the petitioner; ignoring all those salient provisions, the show cause notice was issued and hence it is liable to be quashed.
5. The learned counsel for the petitioner made submissions in support of the averments in the affidavit accompanying the writ petition placing reliance on paragraph 2(b) of Chapter of Export Oriented Units (EOUs), Electronics Hardware Technology Parks (EHTPs), Software Technology Parks (STPs) and Bio- Technology Parks (BTPs) and paragraph 6.6.1 of Chapter 6 of Export Oriented Units (EOUs), Electronics Hardware Technology Parks (EHTPs), Software Technology Parks (STPs) Scheme and Bio-Technology Parks (BTPs). Those provisions are extracted here under for ready reference:
"6.2(b) An EOU/EHTP/STP/BTP unit may import and/or procure from DTA or bonded warehouses in DTA/international exhibition held in India without payment of duty all types of goods, including capital goods, required for its activities, provided they are not prohibited items of import in the ITC (HS). Any permission required for import under any other law shall be applicable. The units shall also be permitted to import goods including capital goods required for the approved activity, free of cost or on loan/lease from clients. The import of capital goods will be on a self certification basis". ... ... ...
"6.6.1 Import/domestic procurement of goods:
Goods permitted to be imported/procured from Domestic Tariff Area shall include:
Goods permitted to be imported/procured from Domestic Tariff Area shall include:
(a) Raw materials, components, consumables, intermediates, spares and packing materials;
(b) Capital goods, whether new or second-hand, including inter alia the following and their spares:
(i) DG sets, captive power plants, transformers and accessories for all above.
(ii) Pollution control equipment.
(iii) Quality assurance equipment
(iv) Material handling equipment, like fork lifts and overhead cranes, mobile cranes, crawler cranes, hoists and stackers.
(v) Un-interrupted Power supply System (UPS), Special racks for storage, storage systems, modular furniture, computer furniture, anti-static carpet, tele-conference equipment, Servo Control System, Air-conditioners/Air- conditioning system, panel for electricals and special date transmission cable.
(vi) Security Systems
(vii) Tools, jigs, fixtures, gauges, moulds, dyes, instruments and accessories;
, Raw material for making capital goods for use within the unit.
(d) Others including:
(i) Prototypes and technical samples for existing product(s) and product diversification, development or evaluation;
(ii) Drawings, blue prints, charts, microfilms and technical data;
(iii) Office equipemtn, including PABX, Fax machines, projection system, Computers Laptop, server.
(e) Spares and consumables for all the above items.
(f) any other items not mentioned above with the approval of Board of Approval.
6. Resting firmly on the above, the learned counsel for the petitioner would submit that even assuming for arguments sake, without admitting that those items referred to in the show cause notice are spares and not sample and tools nonetheless as per the extracted provisions, he is entitled to exemption; but unjustifiably they have issued show cause notice.
7. The learned Additional Solicitor General of India would submit that the show cause notice itself cannot be challenged before this Court as the petitioner is having adequate opportunity of airing his grievance before the authority concerned.
8. Hence, in these circumstances, the following direction is given:
The petitioner within ten days from the date of receipt of a copy of this order, shall submit his detailed explanation to the show cause notice citing the provisions, whereupon the adjudicating authority after giving due opportunity of being heard to the petitioner shall decide the matter and that too in view of paragraph No.10 of the counter affidavit filed in this writ petition.
9. With the above direction, this Writ Petition is disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.
smn/dp To
1.The Commissioner of Central Excise, Office of the Commissioner of Central Excise, Central Revenue Building, Bibikulam, Madurai-625 002.
2.The Joint Commissioner of Central Excise, Central Excise Madurai-II Division, Bibikulam, Madurai-625 002.
3.The Assistant Commissioner of Central Excise, Central Excise Madurai-II Division, Bibikulam, Madurai-625 002.
4.The Superintendent, Office of the Superintendent of Central Excise, Melur Range, Division II, Madurai-625 002.