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HIGH COURT OF DELHI
Writ Petition (Civil) No. 2447/2010
Date of Decision: August 4, 2011 MANU JAIN ....Petitioner
Through Mr. A.P. Sinha, Advocate.
Through Mr. Mukesh Anand, Mr. R.C.S.
Bhadoria and Mr. Shailesh Tiwari, Advocates.
HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R 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.
2011:DHC:3929-DB (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.”
JUDGMENT
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 12th 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 18th 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