TaxTMI 
TaxTMI 
2010 (3) TMI 778
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....e Central Excise Act, 1944, hereinafter referred to as the Central Excise Act. 3. In 1991, a search was conducted by Central Excise authorities inter alia at the registered office of the petitioner No. 1 as well as its manufacturing unit and various documents were seized. 4. A panchanama and/or seizure list was prepared wherein the documents seized have been mentioned. According to the petitioners the seized documents are still in the custody of the respondent authorities. 5. A show cause notice No. V(8423.00) 15/CE-Cal-1/92/1617-1618 dated 5th March, 1992 was issued to the petitioner, pursuant to which adjudication proceedings were started for the financial years 1986 to December, 1991. 6. Pursuant to the show-cause notice of 5th March, 1992, adjudication proceedings were commenced and an order of adjudication was passed. Being aggrieved by the order of adjudication, the petitioners filed an Appeal being Appeal No. E (SP)-4042/93 along with a stay petition No. (SP) - 333/93 before the Customs and Gold (Control) Appellate Tribunal. The stay petition and the appeal were disposed of by an order No. S 584A 654/Cal/93 dated 29th September, 1993. The appeal was a....
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....the writ petitioners filed the instant writ petition seeking orders, restraining the concerned respondents from further proceeding against the petitioner on the basis of the impugned show cause notice dated 27th February, 2002, as the concerned respondents had not furnished the petitioners with the documents relied upon in the said impugned show cause notice, notwithstanding the order dated 24th February, 2005 in W.P. 249 of 2005. 13. After this writ application was filed, the respondent Commissioner of Excise issued a communication No. V (84) 15/17/Kol-H/2002/3056 dated 7-5-07 forwarding to the petitioners the show-cause notice No. V(8423.00) 15/C.E.-Cal-1/92/1617-1618 dated 5th March, 1992 issued by the Commissioner of Central Excise, Kolkata I and an order No. S 584 A 654 Cal/93 dated 29th September, 1993 of the CEGAT disposing of stay petition No. (SP)-333/93 and Appeal No. E (SP)-4042/93, and contending that those were the only documents relied upon in the impugned show-cause notice. 14. From the said communication, it is patently clear that there were no materials with the respondent Collector, other than materials on the basis of which the show cause notice dated....
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....ng, be extended by the Commissioner of Central Excise for a further period not exceeding six months and by the Chief Commissioner of Central Excise for such further period as he may deed fit. (4) The assessee shall be liable to pay interest on any amount payable to Central Government, consequent to order for final assessment under sub-rule (3), at the rate specified by the Central Government by notification issued under section 11AA or section 11AB of the Act from the first day of the month succeeding the month for which such amount is determined, till the date of payment thereof. (5) Where the assessee is entitled to a refund consequent to order for final assessment under sub-rule (3), subject to sub-rule (6), there shall be an interest on such refund at the rate specified by the Central Government by notification issued under section 11BB of the Act from the first day of the month succeeding the month for which such refund is determined, till the date of refund. (6) Any amount of refund determined under sub-rule (3) shall be credited to the Fund: Provided that the amount of refund, instead of being credited to the Fund, be paid to the applicant, if such amount ....
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....o reasons have been disclosed. The time for finalization of provisional assessment has long expired. 21. The impugned show-cause notice smacks of total non-application of mind and apparent inconsistencies. The impugned show cause notice is in effect and substance, a show cause notice under Section 11A, which as observed above, could not have been issued as long as assessment was provisional. Moreover, on the one hand, the assessee has been directed to show cause why duty amounting to Rs. 3,20,97,303/- calculated at the appropriate rate should not be finalized for duty under Rule 9B of the Central Excise Rules, 1944 and Rule 7 of Central Excise (No. 2) Rules, 2001, but at the same time, at the 2nd page of the show-cause notice, it is stated "now provisional assessment is finalized under the Rule 7 of the Central Excise (No. 2) Rules, 2001 read with erstwhile Rule 9B of the Central Excise Rules, 1944." The impugned show cause notice is liable to be set aside on the ground of patent non-application of mind alone, apart from patent inconsistency and illegality on the face of the impugned show cause notice. 22. No documents have been disclosed to the petitioner, save and exc....
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....d notice pertaining to the period from 1986 to 2002 was legally sustainable under Section 11A(1) of the Central Excise Act, 1944. 28. Section 11A of the Central Excise Act, 1944 as amended in 2000 provides as follows : "11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded whether or not such non-levy or non-payment, short-levy or short-payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the Rules made thereunder. A Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid o....
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.... law laid down in M/s. P & B Pharmaceuticals (P) Ltd. (supra) was reiterated in ECE Industries Ltd. v. Commissioner of Central Excise, New Delhi, reported in 2004 (13) SCC 719 = 2004 (164) E.L.T. 236 (S.C.). 33. In Hyderabad Polymers (P) Ltd. v. Commissioner of Central Excise, Hyderabad, reported in 2004 (166) E.L.T. 151, the Supreme Court held that once an earlier show-cause notice on the same issue had been dropped, it could no longer be said that there was any suppression. The extended period of limitation would thus not be available. 34. The judgment in Hyderabad Polymers Pvt. Ltd. (supra) was referred to, relied upon and approved in Nizam Sugar Factory v. Collector of Central Excise, A.P. reported in 2006 (197) E.L.T. 465 = 2008 (9) S.T.R. 314 (S.C.). 35. In M/s. Anand Nishikawa Co. Ltd. v. Commissioner of Central Excise, Meerut reported in 2005 (188) E.L.T. 149 the Supreme Court held that when facts were known to both parties, it could not be said that there was suppression. The extended period of limitation could not be invoked. 36. In any case, for issuance of notice by invocation of the extended period of limitation, reasons were mandatory. In the a....