RAJIV SHARMA,J - (1.) ALL these writ petitions have been filed by three different petitioners and therein following identical reliefs have been claimed for, which are being quoted below: "(a) Issue a writ of prohibition or writ, order or direction in the nature of prohibition, prohibiting the respondents to continue with the proceedings initiated under Section 14 of the Central Excise Act and not to summon the petitioners for appearance before them at Meerut or any place in furtherance of the said proceedings. (b) Issue a writ of certiorari or a writ, order or direction in the nature of certiorari quashing the impugned proceedings initiated under Section 14 of the Central Excise Act and the consequent show cause notices and the summons issued in furtherance thereof.; (c) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the respondents to forthwith return the documents and other movable properties seized from the petitioners premises, both business and residential and not to conduct any further searches or seizures in purported exercise of powers conferred under the Central Excise Act or the Rules framed there under. (d) Issue an appropriate writ, order or direction commanding the respondents to initiate proceedings under Section 22 of the Central Excise Act against all the officers of the Excise Department who have been instrumental and conducting searches and seizures in the petitioners' residential and business premises for the past several years. (e) Issue any other appropriate writ, order or direction which this Hon'ble Court may deem just and necessary in the circumstances of the case may also be passed and (f) to allow the writ petition with costs.
(2.) AS issues raised in all three writ petition are identical, request has come forward to treat writ petition No. 10128 (MB) of 2009 as the leading case and to decide all the three writ petitions together, on the arguments advanced in leading writ petition. Brief background of the case as is reflected from the record are that M/s Arora Aromatics, 2 Km. Stone Moradabad Road Sambhal, District Moradabad, is engaged in manufacture of Menthol Crystal/Powder falling under Chapter sub-heading 30039021, Menthol Solution falling under Chapter sub-heading 29061100 and De-mentholised (DMO), Pepper Mint Oil, Menthones, Terpine etc. falling under sub-heading No. 3301.25.90 of the Schedule to Central Excise Tariff Act, 1985, qua them allegations are that they have contravened provisions of Rules 2, 4, 7 and 10 of erstwhile CENVAT Credit Rules 2002 and Rules 3, 4, 9 and 12 of Cenvat Credit Rules 2004 and Rules 4, 6, 8, 10, 11 and 12 of the Central Excise Rule 2002 by fraudulently availing cenvat credit and utilizing the same for payment of duty on domestic clearances and export of goods on payment of duty and claiming the rebate on duty so paid. Based on an intelligence that M/s Arora Aromatics Sambhal is availing CENVAT credit on inputs, namely menthol Flakes and Dementholised Oil (DMO) on the basis of bogus Cenvat invoices issued by M/s Ruchi Infotech System, Lane No. 3B, Phase II SIDCO industrial Complex, Bari Brahmana, Jammu and M/s Arora Aromatics, Sambhal were utilizing the Cenvat Credit so availed towards payment of duty on their final products for domestic clearances as well as on export of goods under rebate claim and were thereafter claiming the rebate on duty so paid on the exported goods, investigations were initiated by the officers of Central Excise of Meerut, II (Commissionerate against the said M/s Arora Aromatics, Sambhal. Petitioner claims that they are only transporting goods for being used for manufacturing of other products hence they are not required to be registered under the provision of Excise Act the pre requisite term and condition being that the goods so manufactured are dutiable and excisable goods for issuance of summons entitling said credit facility. Petitioners have also give details of the fact that at premises of the petitioner on 03.04.2006 search was conducted and statement of Sri A.K. Goel was recorded. Thereafter on 03.05.2006 and 23.06.2006 summons were issued. Petitioner no. 3 was asked to give evidence. Petitioner has also contended and stated that Director General, Central Excise Intelligence, Sarabha Nagar Ludhina issued summons to petitioners no. 2 and 3 under Section 14 of the Act and in respect of inquiry which was on going against Jindal Drugs for evasion of central excise duty and therein petitioners appeared and nothing was found against them. Petitioners have been asked to appear by issuing summons on 17.07.2007 under Section 14 of the Act. Admittedly pursuant to the said summons appearance has not been put in. Thereafter again summons were issued on 24.07.2007 to appear in person on 06.08.2007 and pursuant to the same also petitioners did not appear, and requested for grant of time, which was accorded. Petitioners' have stated that in respect of inquiry against M/s Ansar Chemical, they have appeared. Again show cause notice was given on 12.09.2007 to appear on 21.09.2008 in respect of inquiry pending for M/s Ansar Chemicals, to which petitioners claim to have submitted interim reply on 23.05.2009. In this background a team of Central Excise Meerut, Commissionerate made thorough investigation in the matter and after conducting the searches at various places, proceedings under Rule 26 of Central Excise Rules 2002 have been initiated and show cause notice was given to petitioner of writ petition No. 10128 (MB) of 2009, dated 28.11.2008 alongwith various others. To the said show cause notice, petitioner submits that he has already submitted his reply on 22.07.2009 and therein prayer has been made on behalf of the petitioner of writ petition No. 10128 (MB) of 2009 that show cause notice against the petitioner be discharged; no personal penalty proposed under Rule-26 of Central Excise Rules be imposed; opportunity of personal hearing may kindly be granted for explaining the view points expressed and opportunity to cross-examine witnesses as requested in the reply be granted and fresh submission may be allowed to be submitted after such cross examination. In between the enquiry which had been ongoing revealed that major supplies of Mentha Oil to M/s Ruchi Infoteck systems, Jammu were M/s Rapti Commission, Agency and M/s Gupta supplied Co.; all located in Uttar Pradesh and in investigation made on 10.07.2009 by Investigating Officer, it has been found that most of the premises/offices of the aforesaid companies were closed/non-existent/not maintaining any records. Petitioners have contended that time and again summons are received by them to appear, the summons dated 04.08.2009 and 14.08.2009 respectively has been received and petitioners claim that said proceedings are nothing but continuous harassment to them as petitioners are not at all engaged in the business of manufacturing of excise goods and have not availed any benefit of CENVAT credit, the impugned proceedings are without jurisdiction and same cannot be continued to harass and victimize and said proceedings are nothing but misuser of the statutory provisions. In this background as well as, as entire proceedings have been undertaken by the authority who has no authority to deal with the matter, writ of prohibition be issued and requisite relief claimed be allowed.
(3.) SUBMISSION to the similar effect has been advanced in other two writ petitions wherein notice under Section 14 of the Act have been issued to appear before the authority concerned on the same set of grounds.;