TaxTMI 
TaxTMI 
2005 (4) TMI 7
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..... 3. On 7th May, 1979 a show cause notice was issued to the petitioners alleging that the PVC Master Batches manufactured by the petitioners were wrongly and incorrectly classified. On 29th September, 1980 in supersession of the above, another show cause notice was issued to the petitioners stating that the PVC Master Batches manufactured by the petitioners were correctly classifiable under TI-14(1)(ii) with the rate of duty at 5%. By the said show cause notice, the petitioners were called upon to pay excise duty under TI-14(1)(ii) in respect of the PVC Master Batches cleared during the period from November, 1978 to April, 1979. The petitioners while objecting to the classification proposed by the department filed a classification list in May, 1979 classifying Master Batches under TI-14(1)(ii) under protest and cleared the same on payment of 5% duty. 4. In reply to the show cause notice dated 29/9/1980 the petitioners submitted that the PVC Master Batches were correctly classifiable under TI 15A-1(ii) and not under TI-14(1)(ii). Rejecting the contention of the petitioners,the Assistant Collector of Central Excise passed an order in original holding that PVC Master Batches were cl....
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....ioners that the demand quantified in the letter dated 9/3/1988 be read as Rs.10,39.664.98 instead of Rs.9,60,865.07. By a letter dated 15th April, 1988 the Superintendent of the Central Excise threatened the petitioners with coercive action if the amount of demand was not paid within three days. However, the said letter was withdrawn by another letter of the same day i.e. 15th April, 1988. 6. Thereafter by a letter dated 27th April, 1988 the Superintendent of Central Excise once again called upon the petitioners to pay the differential duty amounting to Rs.10,39,664.98 within 5 days of the receipt of the said letter. The petitioners objected to the demand, however, ultimately on 16th December, 1988 the petitioners paid the said amount of Rs.10,39,664.98 under protest and without prejudice to the rights and contentions of the petitioners. Hence the present petition is filed in June, 1989 inter alia on the ground that the demand and collection of duty is without authority of law and accordingly sought refund of the said amount illegally collected by the respondents. 7. Mr.H.C.Daruwala, learned counsel for the petitioners submitted that under section 11A of the Central Excise Act, i....
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....emanding and collecting the differential excise duty under TI-68 for the period from April, 1979 to February, 1986. Accordingly, the counsel for the petitioners submitted that the entire action on the part of the respondents is wholly illegal and contrary to law and, therefore, the respondents be directed to refund the illegally collected amount with interest. 9. Mr.R.V.Desai, learned senior advocate appearing on behalf of the respondents submitted that the demand raised in the present case is only as a consequence to the order of the Tribunal dated 31st March, 1987 classifying the PVC Master Batches manufactured by the petitioners under TI-68 of the Central Excise Tariff. He submitted that once the Tribunal holds that the goods are classifiable under TI-68, there is no question of passing any quasi judicial order and on quantification of the amount found due and payable pursuant to the order of CEGAT, the petitioners are bound and liable to pay the same. He submitted that for quantifying duty as per the order of CEGAT, it is not necessary to issue a show cause notice. He submitted that once the Tribunal decides the classification, the natural consequence is that whatever the diff....
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.... under TI-68. Even the Tribunal in its order dated 31st March, 1987 has not held that the respondents are entitled to recover excise duty under TI-68 in respect of the past clearances. Therefore, the contention of the respondents that the demand for recovery under TI-68 for the period from April, 1979 to February, 1986 is in the light of the decision of the Tribunal dated 31st March, 1987 cannot be accepted. 13. In the present case, it is not in dispute that in May, 1979 the petitioners had filed classification list under protest classifying the Master Batches under TI-14 (1)(ii) as claimed by the revenue and since then the Master Batches have been cleared on payment of duty under TI-14(1)(ii) and that the assessment in respect of clearances effected during April, 1979 to February, 1986 have attained finality. It is well settled in law that in the absence of reopening of the completed assessment by a show cause notice within the period of limitation prescribed under the Act, no demand can be raised and if the show cause notice issued is beyond time, then the said show cause notice issued is liable to be quashed and set aside [See Sarabai Chemicals V/s. Collector of Central Excise ....