TaxTMI 
TaxTMI 
2011 (12) TMI 175
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....e appellant has claimed the following substantial questions of law : "I. Whether the decision in the R.C. Tabacco case leaves open the question as to whether a Show Cause Notice is required under law to be issued before recovery of excise duty refunds under Section 154 of the Finance Act, 2003 ? II. Whether the Hon'ble CESTAT has wrongly considered itself bound by the decision in the R.C. Tabacco case to reject the Appellant's contention that a Show Cause Notice must mandatorily be issued prior to recovery of excise duty refunds under Section 154 of the Finance Act, 2003? III. Whether Section 154 of the Finance Act, 2003 could only have validated actions already taken prior to the passing of the Finance Act, 2003 for the recovery of excise duty refunds, and whether therefore no subsequent action for recovery of the said refunds from the Appellants could stand validated? IV. Whether Section 154(3) of the Finance Act, 2003 only bars the maintenance or continuance of any suit or proceedings for any action taken or anything done or omitted to be done in respect of any goods covered by Excise Notifications Nos 32/99-CE and 33/99-CE dated 08.07.1999, and d....
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....ourt in J.K. Cotton Spinning and Weaving Mills Ltd and Another vs. Union fo India and others, 1987(Supp) SCC 35 was held to be distinguishable. This Court held that no prejudice was caused to the appellant by absence of show cause notice. The relevant finding is as under : " It is in the above backdrop that the petitioners have approached this Court invoking its writ jurisdiction challenging the legality and validity of the aforementioned impugned orders. The basic thrust of argument made by Mr. Sridharan was that on the face of it the appellate authority having admitted that no notice was issued to the petitioners giving an opportunity of hearing and it also having noticed that the purported supersession of the earlier notification dated 8.8.2003 by subsequent notifications could not be placed on records and thus the earlier notification dated 8.8.2003 by which the decision to keep in abeyance the show cause notices and/or recoveries was conveyed held that field, could not have ordered for depositing the amount in question within 30 days of receipt of the order by way of rejecting the stay application. Placing reliance on the decision of the Apex Court in JK Spinning & Wea....
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....ever exceeded to. Having regard to the provisions of Section 154(3) of the Finance Act,2003, he observed that the said judgment and order dated 3.12.2002 is not enforceable and consequently the duty not paid by the petitioners during the period from 2nd fortnight of Noovember,2002 till 30th April, 2003 is liable to be recovered. It is on this basis recovery of the amount of Rs.25,46,34,087/- has been ordered as duty not paid against the goods cleared during the aforesaid period along with interest payable." " In the impugned order dated 31.3.2004 although the appellate authority prima facie found fault with non-issuance of show cause notice to the petitioners before passing the order dated 6.6.2003 and it also recorded that the stand of the department that the earlier notification dated 8.8.2003 has already been superseded could not be substantiated, but dealing with the moot point that the Division Bench judgment of this Court dated 3.12.2002 quashing the notification dated 1.3.2001 is pending consideration before the Apex Court, it has referred to the stay order dated 12.1.2004 passed by the Apex Court staying operation of the said judgment and order dated 3.12.2002. It a....
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....w that they have been prejudiced by the impugned action having placed to material. In the aforesaid case of Canara Bank(supra) the Apex Court also observed that though in all cases post decisional hearing cannot be a substitute for pre-decisional hearing, in a given case the position might be different. In the present case, the petitioners apart from attacking the impugned order dated 6.6.2003 more emboldened by the observation made by the appellate authority have not stated anything as to what material they could have placed before the Deputy Commissioner, had they been issued with a notice. The entire action on the part of the Deputy Commissioner was upon assessing the situation that had arisen pursuant to the judgment in writ appeals and the effect and retrospective operation of Section 154 of the Finance Act,2003 coupled with the stay order passed by the Apex Court. Undisputed facts for which there is no plausible explanation from the petitioners dilute the plea of non-issuance of notice to the petitioners. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. The Apex Court have also emphasized that not ....