* 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.
WP(C) 2447/2010 Page 1 of 6
(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
WP(C) 2447/2010 Page 2 of 6
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.
WP(C) 2447/2010 Page 3 of 6
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.
WP(C) 2447/2010 Page 4 of 6
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
WP(C) 2447/2010 Page 5 of 6
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
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