2014 (2) TMI 404

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....xtended period. The learned advocate further submits that the extended period can only be invoked, provided the conditions, enshrined for such purposes, are fulfilled. Issuance of the show cause notice by the authority, in colourable exercise of power, by mere recording the ingredients required therefor, without specifying other facts and materials, is not permissible and the said show cause notice is liable to be struck down. It is an admitted fact that there was a shortfall in payment of the duty by the petitioner. The petitioner, subsequently, paid the differential duty as well as the interest, as provided under the Act. The authorities, thereafter, issued a show cause notice contemplating to initiate a proceeding for imposition of pena....

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....he root of the jurisdiction, and, therefore, the entire proceedings should be held to be nullity. It is further contended that the genesis of the show cause notice originated from the various disclosures and/or payment of the differential duty and, therefore, the authorities have abused the power conferred by the statute. As a last resort it is submitted that when there is no wilful suppression of the fact, the authorities could not have invoked and/or applied the extended period in issuing the show cause notice. In support of the aforesaid contention, reliance is placed upon an unreported judgment of the Supreme Court rendered in the case of Hindustan Metal Pressing Works - vs- Commissioner of Central Excise, Pune, (Appeal (Crl) No. 205....

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....order which is par se illegal and without jurisdiction. An erroneous order is capable of being corrected by going higher but an order, which is par se without jurisdiction and a nullity, can be assailed in a collateral proceedings. Had it been a case of the petitioner that the show cause notice is issued by an authority, not competent under the statute and the entire proceedings is carried out by an authority not competent therefor, the proposition of law, as tried to be contended by the petitioner, could very well be accepted. It has not been said by the petitioner that the authority, who passed the original order, was incompetent to pass such order. What is tried to be contended is that the show cause notice was issued on an illusionary ....