THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.14394 of 2010 July 27, 2010 Between: M/s.K.V.P.Vet Farma (INDIA) Pvt. Ltd., Hyderabad, represented by its Director, Smt.T.Padmaja, R/o.42-598/1 & 2, Universal Garden, Plot No.405, M.J. Colony, Street No.4, Moulali, Hyderabad And another … Petitioners And The Additional Commissioner of Customs, Central Excise and Service Tax, Hyderabad – 3, Commissionerate, Hyderabad ... Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.14394 of 2010 ORDER: (per Hon’ble Sri Justice V.V.S.Rao) The first petitioner is a company incorporated under the Companies Act, 1956. It was established for the purpose of manufacturing veterinary medicines and feed supplements. They obtained Small Scale Industry (S.S.I) Registration, which entails them to seek exemption from payment of central excise duty upto the value of clearance of Rs.1,50,00,000/-. The petitioners allege that they were in production for a brief period, but from November 2004 onwards they became defunct. They filed the instant writ petition aggrieved by the adjudication order dated 29.3.2010 under Section 33A of Central Excise Act, 1944, passed by the sole respondent herein demanding central excise duty, penalty and interest for clearing the goods without payment of central excise duty for the years 2004-2005 & 2005-2006 (upto 14.12.2005). The respondent filed counter affidavit opposing the writ petition. It is mainly contended by the Counsel for petitioners that there is no proper show cause notice to the petitioners before adjudication. He also contends that the show cause notice was allegedly pasted on the main gate of the factory premises but the impugned order was served on the director (second petitioner) at her residence. He would therefore urge that when the respondent was aware of the address of the director of the second petitioner, nothing prevented them from serving show cause notice in the same address instead of resorting to service under Section 37C(b) of the Act. Per contra, the Senior Central Government Standing Counsel points out that the order being appellate order, the question whether or not the show cause notice was properly served should be left open to be decided by the appellate authority. There is no dispute that against the impugned order, an appeal lies under Section 35(1) of the Act to the Commissioner of Central Excise and Customs. There is a serious dispute with regard to the liability of the petitioners, which again is inter-related to the findings of fact in the enquiry allegedly conducted by the respondent. In such a situation, a petition for judicial review would not be the proper remedy nor we are inclined to exercise our discretion. The issue raised before us can as well be raised before the appellate authority, which we hope shall be considered as a preliminary issue. We therefore relegate petitioners to the remedy of appeal. The writ petition is accordingly dismissed. No costs. ________________ (V.V.S. RAO, J) _______________________________ (RAMESH RANGANATHAN, J) July 27, 2010 YS