LAWS(MAD)-1991-12-37

BHEENA PHARMA JAPADAR Vs. UNION OF INDIA

Decided On December 06, 1991
BHEENA PHARMA JAPADAR Appellant
V/S
UNION OF INDIA Respondents

JUDGEMENT

(1.) BOTH the writ petitions filed by two different firms through the Power of Attorney Agent are directed against the summons issued by the fourth respondent on 11-10-1991 under Section 108 of the Customs Act.

(2.) THESE writ petitions are off-shoot of earlier writ petition Nos. 13702 and 13703 of 1991. Writ Petition No. 13702 of 1991 was filed for the issue of a writ of mandamus to direct the respondents therein to assess five Bills of Entry relating to Invoice Nos. 932 to 936 dated 7-9-1991 and Bill of Lading No. 232-86442764 dated 8-9-1991 and relating to the goods therein. The said writ petition was filed by M/s. R.V. Chem, through its Power of Attorney Agent D.R. Vora. Writ Petition No. 13703 of 1991 was filed by Bheena Pharma through its Power of Attorney Agent D.R. Vora praying for the vary same relief to direct the respondents to assess the two Bills of Entry relating to Invoice Nos. 930 and 931 dated 7-9-1991 and Bill of Lading No. 232-86442764 dated 8-9-1991. When the abovementioned writ petitions were coming for admission, notice of motion was ordered on 30-9-1991. After hearing the arguments of the learned counsel on both sides, the following order is passed by me on 8-10-1991.

(3.) MR. R. Thiyagarajan, the learned senior counsel appearing for the petitioner in both cases fairly started his arguments stating that he is not questioning the jurisdiction of the respondents in issuing summons under Section 108 of the Customs Act, but questions only the mode of issue of summons. Learned counsel contends that when affidavits and documents filed in the earlier writ petitions mentioned hereinabove are with the respondents. It is not necessary for them to issue summons under Section 108 of the Customs Act. According to the learned senior counsel, the issue of summons is not abona fideand it is a clear abuse of power. The learned senior counsel further argues that the summons show that they have been issued to different bills of entry and as such the summons issued show total non application of mind on the part of the fourth respondent. The learned counsel further argues that the only question to be decided is with regard to the valuation which has to be made according to Rules 5 to 8 of the Customs Valuation Rules and as such it is not necessary for the respondents to summon the petitioner for any enquiry. According to the learned senior counsel, when the petitioners in both cases have waived the show cause notice and asked for only enquiry, it is not necessary for respondents to issue summons for an enquiry under Section 108 of the Customs Act. The learned senior counsel further refers to certain decisions for the purpose of showing the evidentiary value of an affidavit. For that purpose, the learned senior counsel also refers to a passage in "Sarkar in Evidence" 11th Edition page 1391, and the decisions reported in 1988 (S3) SCR 770, 1989 AIR(SC) 516, 1989 (3) SCC 488, 1988 (4) JT 330, 1988 (2) Scale 1115, 1989 (74) STC 401, 1988 (38) ELT 535, 1988 (19) ECR 578, 1989 (76) AIR 516, 1989 (179) ITR 317, 1988 (18) ECC 435, 1989 (46) Taxman 88, 1989 SCC(Tax) 469, 1989 (75) CTR(SC) 1 at 548], 1988 (36) ELT 369], in 1979 (4) ELT 212] and in1956 AIR(SC) 554, 1956 (30) ITR 181, 1956 SCJ 678, 1956 (1) SCR 626, 1956 (43) AIR(SC) 554 ). According to the learned senior counsel the dispute is only with regard to the value. According to the learned senior counsel for the petitioner, the issue of summons by the fourth respondent is nothing but to harass the petitioners. The sum and substance of the argument of the learned senior counsel for the petitioner is that when all the materials are available with the respondents, there is no necessity for respondents to issue the summons, which are impugned herein, as if new point is going to be brought out in the enquiry, in pursuance of the summons issued under Section 108 of the Customs Act.