TaxTMI 
TaxTMI 
2016 (5) TMI 1066
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....was issued proposing for re-classification and also for denial of exemption notification and demand of duty. The adjudicating authority after several rounds of litigation in his denovo order dated 31.10.2005 re-classified the products under chapter heading 3403 and 2710 99 and denied the exemption notification and also demanded excise duty of Rs. 1,01,63,654/- towards BED and Rs. 15,24,549/- towards SED under Section 11A of CEA, 1944 along with interest. Against the said order both the assessee and the Revenue preferred appeals before the Commissioner (Appeals). The Commissioner (Appeals) in his impugned order dated 31.07.2007 allowed the revenue appeal and rejected the assessee's appeal. Consequently, he modified the duty demand to Rs. 1,25,90,015/- as against the original demand of Rs. 1,16,88,203/- (BED + SED) along with interest. Hence the present appeal. 3. The Ld. Advocate raised a preliminary objection and submits that there was no show cause notice issued under Section 11 A of CEA, 1944, demanding central excise duty. He drew our attention to the alleged show cause notice (dt. 12/1992) and submits that the said SCN was only a draft SCN and the work "draft" was delete....
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....ng authority confirmed the demand for the period upto 1994, which is beyond the scope of the SCN. He submits that they contested before the Commissioner (Appeals) and in their reply to the SCN, but the same was not considered. He pleads to set aside the demands on the ground that no SCN was issued under Section 11A of the CEA, 1944. 5. On the other hand, the Ld. AR reiterated the findings of the adjudicating authority and findings of the Commissioner (Appeals) and countered the points raised by the Ld. Advocate and submits that in the present case there was SCN issued to the appellant for re-classification as well as demanding recovery of duty. All the case laws relied on by the appellants are not applicable to the case on hand. The adjudicating authority correctly re-classified and denied exemption notification and consequently demanded duty from the year 1992-1994 as the classification list was not finalized. He submits that once there is a SCN alleging for denial of exemption, the amount need not be quantified in the SCN, he relies on the following case law:- 1. Bihari Silk & Rayon Processing Mills (P) Ltd. 2000 (121) ELT 617 (Tri.-LB) 2. NGP Industries Ltd. Vs. CCE, JS....
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....rned Technical Member of the Tribunal has rightly come to the conclusion that the various documents and orders which were sought to be treated as show cause notices by the Appellate authority are inadequate to be treated as show cause notices contemplated under Rule 10 of the Rules or Section 11A of the Act. Even the Judicial Member in his order has taken almost a similar view by holding that letters either in the form of suggestion or advice or deemed notice issued prior to the finalisation of the classification cannot be taken note of as show cause notices for the recovery of demand, and we are in agreement with the said findings of the two Members of the Tribunal. This is because of the fact that issuance of a show cause notice in a particular format is a mandatory requirement of law. The law requires the said notice to be issued under a specific provision of law and not as a correspondence or part of an order. The said notice must also indicate the amount demanded and call upon the assessee to show cause if he has any objection for such demand. The said notice also will have to be served on the assessee within the said period which is either 6 months or 5 years as the facts dem....
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....as been given a reasonable opportunity of making a representation and, if so desired, of being heard. Clause (b) of sub-section (3) applies when duty which has not been levied or has been short-levied or has been erroneously refunded is sought to be recovered. In such event, no order in this behalf can be made unless the person who would have to pay is (a) given notice to show cause against "it", that is, against being required to pay; and (b) the notice is given within the time limit specified in Section 11A. 6. The order of the Collector under Section 35A gave to the appellants no notice that he proposed to make an order that would require them to pay the duty which might be found to have been short-levied if the frit was found to be classifiable under Item 23A(4). The orders of the Collector and of the Tribunal, insofar as they required the appellants to pay the short-levied duty, even though limited to the period of six months prior to the date of the notice by the Tribunal, are bad in law. 7. In the result, the appeal is allowed. The order of the Tribunal is set aside insofar as it directs the Central Excise authorities to recalculate the amount of the short levy in the ....