GENEST ENGINEERS PVT. LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioners have come forward with the present writ petition for issue of a writ of mandamus or any other appropriate writ, order or direction holding and declaring that Section 37 -B of the Central Excises and Salt Act, 1944 is ultra vires the Act and the Constitution of India. There is a further prayer to quash the impugned show cause notice, which is Annexure 'K' to this Special Civil Application. The other prayers are consequential prayers with regard to the above said main objections raised by the petitioners herein.

(2.) SECTIONS 37 -B of the Central Excises and Salt Act, 1944 reads as follows :

(3.) THE short facts of this case for the purpose of appreciating the contention of the petitioners herein are that the petitioners availed the benefit of the Notification dated 1 -3 -1986 and opted to come under the Modvat Scheme. On 2 -4 -1986, the Government issued another Notification No. 216/86 wherein the Government has increased the limit of exemption for those who have not opted for Modvat Scheme. Since the petitioners thought that this exemption granted by the above said notification will benefit his trade, opted out of Modvat Scheme and wanted to avail the exemption benefit granted by Notification No. 216/86. No doubt, the authorities concerned have approved the classification list and also RT -12 return filed by the petitioners for the purpose of coming under the general scheme of exemption. It is the say of Mr. Trivedi, the learned Counsel appearing for the petitioners, that the authorities who have accepted the classification list and RT -12 returns should not reopen the matter by issuing the show cause notice which is in question now and, on the other hand, they should have followed the procedure under Section 35 -E of the Central Excises and Salt Act, 1944. It is the next contention of Mr. Trivedi that there is absolutely no bar, either in the Rules or in the Act, prohibiting any person from opting out of Modvat Scheme and availing the benefit of the general exemption scheme granted by the notification referred above. Both these submissions can as well be pressed before the quasi -judicial authority when the matter is taken up for hearing after the explanation is given by the petitioners for the show cause notice issued, which is Annexure 'K' to the Special Civil Application. We are not expressing any view as to how far the clarification issued by the Board, which is Annexure 'J' to the main Special Civil Application will be binding upon the parties concerned. That is a matter which has to be decided by the properly constituted quasi -judicial authority and any instruction or clarification such as Annexure 'J' will not bind the quasi -judicial authority in deciding the above said contentions raised by the petitioners herein. The quasi -judicial authority without being obsessed by such clarification or trade notices, if any, in pursuance of such clarification will decide the issue as and when it comes up before them. As on date, the petitioners have to give explanation for the show cause notice issued by the Department. We are of the view that it is premature for the show cause notice issued by the Department. We are of the view that it is premature for the petitioners to approach this Court at this point of show cause stage. For all these reasons we have stated above, we do not find any merits in any of the contentions raised by the learned Counsel appearing for the petitioners herein and accordingly, the Special Civil Application is dismissed.