IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 WP(C).No. 1966 of 2009(H) ------------------------- PETITIONER(S): -------------------- FERRUM ASSOCIATED TECHNOLOGIES, HB 47, SOUTH BRIDGE AVENUE, PANAMPILLY NAGAR,KOCHI-36, REPRESENTED BY ITS AUTHORISED SIGNATORY MANUEL.T.C, S/O. CELESTINE, AGED 40 YEARS, THACHAPPILLY HOUSE, BOLGATTY, MULAVUKAD.P.O, KOCHI-4. BY ADV. SRI.P.V.GEORGE(ONAKKOOR) RESPONDENT(S): ----------------------- 1. THE ADDITIONAL COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, COCHIN COMMISSIONERATE, C.R. BUILDINGS, I.S. PRESS ROAD, KOCHI-18. 2. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, NEW DELHI. ADV. SRI.ABRAHAM THOMAS,SC,CENTRAL BOARD-EXC FOR R1 &2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 1966 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of January, 2009 JUDGMENT Petitioner seeks to challenge Ext.P2. Learned counsel for the petitioner Sri.P.V.George would point out that actually what is in challenge is Ext.P3. Ext.P3 is no doubt a show cause notice. Complaint taken is that in reality it cannot be treated as a mere show cause notice as a perusal of the notice would indicate that the authority has made up his mind. Learned counsel also relied on the decision reported in Siemens Ltd. v. State of Maharashtra (2007(207) E.L.T. 168 (SC)). In that case the show cause notice was challenged, and a counter affidavit was also filed. Therein the Apex Court held as follows: “Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. (AIR 1987 SC 943), Special Director and Another v. Mohd. Ghulam Ghouse and Another ((2004) 3 SCC 440) and Union of India and Another v. Kunisetty Satyanarayana (2006 (12) SCALE 262), but the question herein has to be considered from a different angle, WPC. 1966/2009. 2 viz,when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. (See K.I.Shephard and others v. Union of India and Others ((1987) 4 SCC 431)). It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause. xxxxxx xxxxxx A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show cause notice. The writ petition, in our opinion, was maintainable.” If one considers the facts of the said case, it is to be noticed that, that was a case where not only the notice was issued but a counter affidavit was filed. It is in the context of the said element that the dictum of the court should be appreciated. I would think that the petitioner should be relegated to prefer WPC. 1966/2009. 3 his objections to Ext.P3 show cause notice, where it will be open to the petitioner to raise all objections available in law and on facts. Necessarily the authority shall with an open mind consider all the objections, which the petitioner may raise before him and pass appropriate orders in accordance with law. Accordingly the petitioner is relegated to prefer objections to Ext.P3. The writ petition is disposed of as above. (K.M. JOSEPH, JUDGE) sb