2008 (7) TMI 272 - HC - Central Excise

Court sets aside order & demand, stresses show cause notice compliance under Rule 10 for procedural fairness

The Court allowed the writ petition, setting aside the impugned order and the demand raised for the specified amount. The Court emphasized the importance ... Contentions raised by the petitioner that the demand raised was illegal as no show cause notice had been issued to the petitioner under Rule 10 of the Central Excise Rules, 1944 - There was no specific demand sought to be raised in letter issued by the Assistant Collector, as is the requirement under Rule 10 of the Central Excise Rules, 1944 – held that provisions of Rule 10 are mandatory and unless and until they are complied with, no amount can be recovered from the petitioner Issues involved:Exemption availability for waste items under Tariff Item 18, compliance with Rule 10 of the Central Excise Rules, 1944 regarding show cause notice issuance.Exemption Availability for Waste Items under Tariff Item 18:The petitioner challenged an order regarding the classification of waste nylon tow and staple fiber under Tariff Item 18, seeking exemption under notification No. 53/72-C.E. The dispute arose from the Assistant Collector's denial of the exemption claimed by the petitioner, leading to subsequent appeal and revision petitions. The petitioner contended that the clearances were done based on the Superintendent's approval prior to the Assistant Collector's letter requiring a separate classification list. The Assistant Collector's subsequent order-in-original and the demand notice were based on the denial of the exemption claimed by the petitioner.Compliance with Rule 10 of the Central Excise Rules, 1944:The petitioner argued that the demand raised was illegal due to the absence of a show cause notice issued under Rule 10 of the Central Excise Rules, 1944. The petitioner relied on the Supreme Court's decision in Metal Forgings case, emphasizing the mandatory nature of Rule 10 requirements. The Court noted that the letter dated 24-4-1973 did not meet the criteria of a show cause notice as it did not specify the amount to be recovered or provide an opportunity for the petitioner to explain why any duty deficiency should be recovered. The Court held that the principles of natural justice enshrined in Rule 10 were mandatory, and any deviation would be fatal to the Revenue's case.Judgment:The Court allowed the writ petition, setting aside the impugned order and the demand raised for the specified amount. The Court emphasized the importance of issuing a show cause notice in the prescribed manner under Rule 10, highlighting that it provides an opportunity for the assessee to present reasons against the alleged duty deficiency. Failure to comply with this requirement renders all subsequent proceedings invalid. The Court's decision was based on upholding the principles of natural justice and ensuring procedural fairness in excise duty matters.