Manu Jain vs Neerja Shah & Ors.
2011 Latest Caselaw 3725 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+             Writ Petition (Civil) No. 2447/2010

%                                Date of Decision: August 4, 2011

MANU JAIN                                            ....Petitioner
                     Through     Mr. A.P. Sinha, Advocate.


                    VERSUS

NEERJA SHAH & ORS.                                 .....Respondents
                           Through      Mr. Mukesh Anand, Mr. R.C.S.
                                        Bhadoria and Mr. Shailesh Tiwari,
                                        Advocates.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

                                 ORDER

% SANJIV KHANNA, J.

The petitioner-Manu Jain is a director of M/s. Bafna Healthcare

Pvt. Ltd. He has filed the present writ petition for following reliefs:-

"(i) to issue writ or certiorari or other appropriate writ to quash and declare as non est in law the illegal arrest warrant/memo dated 11.1.2010 issued by the Respondent No.4 and declared that the arrest and detention of the petitioner by respondents No.1 to 4 from 11.1.2010 till 8.2.2010 are illegal, vexatious, unauthorized by law, malafide and resorted to by abuse of power and misuse of authority for which the respondents No.1 to 4 are liable to be proceeded against and punished in accordance with law.

(ii) To issue or writ of mandamus to the respondents not to harass the petitioners and not resort to any arrest or detention any time in future.

(iii) To issue writ of mandamus to ensure that no citizen is deprived of his fundamental right to life, liberty, dignity and livelihood in any manner by resorting to illegal arrest without even issue of show cause notice and opportunity of hearing and without even being preceded by an adjudication in accordance with law by the competent authority and deprivation of the Petitioner's right to life and liberty by the respondents No.1 to 4 cannot be justified at all.

(iv) To summon the records of the lower authorities including the respondents and the lower Courts.

(v) To pass ad interim exparte orders to prevent further hardship and harassment to the petitioner.

(vi) To award exemplary costs to the petitioner.

(vii) To pass such other order or orders as this Hon'ble Court may deem fit and proper having regard to the facts and circumstances of the case."

2. The grievance and the case made out by the petitioner is that the

office of the Central Excise, Faridabad had carried out search operations

at the factory premises of M/s. Bafna Healthcare Pvt. Ltd. at Faridabad on

9th November, 2009 and 20th November, 2009, thirteen vehicles were

seized. These vehicles were subsequently released on payment of duty.

3. Case of M/s. Bafna Healthcare Pvt. Ltd. is that they were/are

converting the base unit of manufactured vehicles, which are duty paid,

into ambulances by installing requisite medical appliances, fittings etc. It

is stated that the said process/activity does not amount to manufacture

under the Central Excise Act, 1944. The case of the respondent, Central

Excise, Faridabad is to the contrary. They claim that the base vehicles are

classified as goods delivery vans under CETSH 8704 2190 and the

ambulances after fabrication or conversion are classified under CETSH

8703 3392 of the Central Excise Act, 1944. They rely upon Section 2(f) of

the Central Excise Act, 1944. The said section defines the term

"manufacture" which includes; (i) any process incidental or ancillary to

the completion of a manufactured product; (ii) which is specified in

relation to any goods in the Section or Chapter Notes of the Schedule to

the Central Excise Tariff Act, 1985 as amounting to manufacture. They

also rely upon Note-6 of Section XVII of the Central Excise Tariff Act,

1985, which stipulates that "in respect of goods covered by this Section,

conversion of an article which is incomplete or unfinished but having the

essential character of the complete or finished articles (......)into

complete or finished articles shall amount to manufacture."

4. Statement of Manu Jain, the petitioner herein, was recorded by one

J.P. Meena, Superintendent of Central Excise (Anti-evasion), Faridabad.

Thereafter, another statement of Manu Jain was recorded on 24th

November, 2009.

5. On 11th January, 2010, the petitioner No.1 was arrested by

Arresting Officer (Anti-evasion), Delhi-IV and produced before the Court

of Additional Chief Metropolitan Magistrate, Delhi. The petitioner No.1

was granted transit bail on furnishing personal bond with two sureties for

his appearance before the Chief Judicial Magistrate, Faridabad on 12 th

January, 2010 at 2.30 p.m. It may be noted that the petitioner had filed an

application for anticipatory bail, which was rejected by Additional

Session Judge, Faridabad on 11th January, 2010 as infructuous as the

apprehension of the petitioner No.1 that he might be arrested was without

any basis. It appears that only report from police station, Sector-7,

Faridabad had been called for. Subsequently, the petitioner No.1 appeared

before the Chief Judicial Magistrate, Faridabad and moved an application

for bail. This application was opposed by the Department of Central

Excise, Faridabad. The petitioner was not granted bail and vide order

dated 12th January, 2010 passed by the Chief Judicial Magistrate, the

petitioner No.1 was remanded to judicial custody till 25th January, 2010.

The petitioner No.1 filed an application/petition before the Additional

Session Judge, Faridabad. The said application was also rejected by the

Additional Session Judge, Faridabad by his decision dated 18 th January,

2010.

6. The petitioner filed an application for bail before the Punjab and

Haryana High Court. During the pendency of the application before the

Punjab and Haryana High Court, vide order dated 8th February, 2010, the

Chief Judicial Magistrate, Faridabad passed an order that the petitioner

No.1 should be released from the judicial custody.

7. The whole edifice of the present writ petition is based and founded

upon the contention that M/s. Bafna Healthcare Pvt. Ltd. was/is not liable

to pay excise duty for conversion activities undertaken by them. Certain

other aspects have also been raised, but these pertain to judicial orders

which have been passed by the Court of Chief Judicial Magistrate,

Faridabad and Additional Session Judge, Faridabad.

8. M/s. Bafna Healthcare Pvt. Ltd. has filed a contemporious civil writ

petition No.2448/2010 in which they have stated that the proceedings

initiated by the Central Excise Department, Faridabad should be quashed.

By an order passed today, the said writ petition has been disposed of as

pre-mature. It has been held that the question whether or not excise duty is

payable has to be decided in course of the proceedings under the Central

Excise Act, 1944. We do not think that it will be proper to go into the

aspects and questions raised without adjudication and decision whether or

not excise duty was payable on the activities undertaken by M/s. Bafna

Healthcare Pvt. Ltd. and till that question is decided, it will not be

appropriate and proper to decide any question and issue raised in the

present writ petition. In these circumstances, we are not inclined to

entertain the present writ petition at this stage and leave it open to the

petitioner No.1 to approach Court/forum if there an affirmative decision

on the activities undertaken by M/s. Bafna Healthcare Pvt. Ltd. No costs.

SANJIV KHANNA, J.

CHIEF JUSTICE August 04, 2011 NA