Prestige Paints vs CC and CE and Another

M. Katju, J.—Heard Sri Bharatji Agarwal and Sri. Pankaj Bhatia, learned counsel for the petitioner and Sri G.R. Gupta for the respondents,

By means of this petition, petitioner has prayed for a direction to respondent No. 1, the Commissioner, Customs & Central Excise, Kanpur-Nagar to permit the petitioner to cross examine the witnesses as prayed for by the petitioner in its application dated 21.7.2003 and for quashing the order/letter dated 8.9.2003, Annexure-6 to the petition.

The petitioner is propriety concern which carries in the business of manufacture of paints and varnish etc. at Kanpur. The Directorate General, Anti-Evasion conducted various search and seizures in the premises of the petitioner and during this operation, seized certain goods and documents and also recorded statements of various persons. Thereafter, a show cause notice dated 27.8.1999 was served on the petitioner as well as several other persons making various allegations with a view to levy Central Excise duty and penalty. The petitioner filed a reply denying the allegation against him. The matter is pending before the respondent No. 1 for adjudication u/s 33 of the Central Excise Act.

The petitioner has prayed for cross-examining of 17 witnesses whose statements have been allegedly recorded which have been referred to the show cause notice, Annexure-1 to the Supplementary Affidavit. By the letter dated 8.9.2003 this request for cross-examination has been denied.

In our opinion, this writ petition is pre-mature, because as yet no adverse order imposing Central Excise duty or penalty has been passed against the petitioner.

Learned counsel for the petitioner has relied on the Division Bench decision of the Bombay High Court in G.T.C. Industries Ltd. Vs. Union of India, . In our opinion, that decision is distinguishable because there an order imposing excise duty and penalty had been passed, whereas in the present case no such order has been passed. For all we know even without permitting cross-examination the respondent No. 1 may ultimately pass an order in favour of the petitioner. Also, it may be that in the final order which respondent No. 1 may pass, he may not refer to the statements of the witnesses whose cross-examination has not been permitted. It is also possible that those statements are not relevant for the purposes of excise duty and penalty. At present we are in the realm of pure conjecture.

In our opinion a writ petition lies when some cause of action arises, and as yet adverse order imposing excise duty or penalty has been passed against the petitioner. The petition is, therefore, dismissed as pre-mature.

However, if and when any adverse order is passed against the petitioner imposing excise duty or penalty, it will be open to him to challenge the same before the appropriate forum at that stage.