1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.8929 of 2011 And M.P.(MD).Nos. 1 & 2 of 2011 P.Vivekanandan ... Petitioner -Vs- 1. The Union of India Rep. by its Secretary to Government Ministry of Finance Department of Revenue New Delhi 2. The Deputy Commissioner Office of the Deputy Commissioner of Central Excise, Madurai II Division Central Revenue Buildings No.5, V.P.Rathinasamy Road Bibikulam, Madurai - 625 002 3. The Superintendent of Central Excise Office of the Superintendent of Central Excise and Service Tax Karaikudi Range 1st Floor, No.9, Gandhi Road New Town, Karaikudi - 630 001 Sivagangai District ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari calling for the records pertaining to the show cause notice dated 18.10.2010 by the second respondent in C.No. V/ST/30/241/2010 STU and quash the same. **** For Petitioner : Mr.R.Sundar Srinivasan For Respondents: Mr.R.Aravindan O R D E R What is impugned in this Writ Petition is only a show cause notice, dated 18.10.2010, issued by the Deputy Commissioner Office of the Deputy Commissioner of Central Excise, Madurai II Division Central Revenue Buildings, Madurai - 625 002, the second respondent herein, calling upon the petitioner as to why (i) an amount of Rs.4,25,846/- (Service Tax: Rs.4,16,516 + Ed. Cess: Rs.8,330 + She. Cess: 1,000) being the Service Tax not paid on the value of services provided during the period from 16.06.2005 to 31.03.2008 as detailed above should not be demanded under proviso to Section 73(1) of the Act, https://hcservices.ecourts.gov.in/hcservices/ 2 (ii) Interest at the appropriate rate should not be collected from him under Section 75 of the Act, (iii) a penalty should not be imposed on him under Section 78 of the Act; (iv) a penalty should not be imposed on him under Section 77 of the Act. 2. Perusal of the show cause notice also shows that notice is required to produce all the evidence, on which intends to rely upon in the defence at the time of issuing notice and it is also provided to an opportunity are being heard before the case is adjudicated. 3. It is well settled that writ against show cause notice is not maintainable. Useful reference can be made to the following decisions: (i) In State of U.P. v. Brahm Datt Sharma reported in 1987 (2) SCC 179, at Paragraph 9, held as follows: "When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. ‘The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not have interfered with the show cause notice. (ii) The Supreme Court in Special Director v. Mohd. Ghulam Ghouse reported in 2004 (3) SCC 440, at paragraph 5, held as follows: "This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be https://hcservices.ecourts.gov.in/hcservices/ 3 entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted." 4. In addition to the above, though the matter came up for admission, it is also brought to the notice of this Court, Mr.R.Aravindan, learned senior standing counsel submitted that in an identical matters, a Division Bench of this Court has already dismissed the Writ Appeals in W.A.(MD).Nos. 241 to 246 of 2011, by Judgment, dated 01.03.2011 and W.A.(MD).No. 115 of 2011, dated 03.03.2011. 5. However, the learned counsel for the petitioner submitted that W.A.(MD).No. 175 of 2011, has been admitted and the same is refuted by the Government counsel. 6. In any event, it is well settled that the writ against show cause notice cannot be entertained unless it is palpablic illegality or contrary to the statutory. Going through the material on records, this Court is not inclined to entertain the Writ Petition. Hence, this Writ Petition is dismissed. Consequently, connected Miscellaneous Petitions are also dismissed. No costs. sd/- Deputy Registrar (Writs) /True Copy/ Sub Assistant Registrar (C.S) To 1. The Secretary to Government The Union of India Ministry of Finance Department of Revenue New Delhi 2. The Deputy Commissioner Office of the Deputy Commissioner of Central Excise, Madurai II Division Central Revenue Buildings No.5, V.P.Rathinasamy Road Bibikulam, Madurai - 625 002 https://hcservices.ecourts.gov.in/hcservices/ 4 3. The Superintendent of Central Excise Office of the Superintendent of Central Excise and Service Tax Karaikudi Range 1st Floor, No.9, Gandhi Road New Town, Karaikudi - 630 001 Sivagangai District W.P.(MD).No.8929 of 2011 And M.P.(MD).Nos. 1 & 2 of 2011 10.08.2011 vsg RJ/29.8.11 4p/4c https://hcservices.ecourts.gov.in/hcservices/