TaxTMI 
TaxTMI 
2018 (3) TMI 336
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..../s J.K. Cotton Mills upheld the validity of the amendments made in Rule 9 and 49 by Notification No.20/82-CE dt. 20.02.92 but confined the effect thereof to six months prior to the amendment made therein. The writ petition filed by the Appellant was also disposed of accordingly. In appeal, the Hon'ble Supreme Court vide its judgment dt. 15.3.83 directed the Appellants to pay full duty for the future period and for the past period directed to pay 50% of the duty and for remaining 50% to furnish a bank guarantee with a direction to keep the bank guarantee alive from time to time. The Appellant executed a bond supported by a bank guarantee, which was renewed from time to time. During the said period the Appellants were filing classification lists as well as RT-12 returns. On the said classification lists as well as RT-12 returns the department made endorsements that in respect of captively consumed yarn the removal has been made without payment of duty and that the duty has been assessed provisionally under Rule 9B of the Central Excise Rule, 1944. Further that the provisions of the said rule shall apply for recovery of duty after the decision of the Hon'ble Delhi High Court. ....
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.... 8.12.1988 passed by the Asst. Collector. Hence the present Appeal. 2. Shri R.V. Desai, Id. Sr. Advocate with Shri R.B. Pardeshi, Advocate appearing for the Appellant submits that the impugned order is wrong as the same has been passed contrary to the order dt. 28.4.1988 passed by the Hon'ble Supreme Court. That in said order the Hon'ble Apex court had directed that the Revenue would be entitled to realize its dues only in those cases where Notices u/s 11 A of the Act have been served and the claims do not cover for any period beyond six months from the respective dates of the notices. In present case no show cause notice was issued and hence no demand can be made against the Appellant. That when classification lists in question were submitted the amended sub-rule 3 of rule 173B of erstwhile rules was in force, endorsement was made by the Revenue on the classification list to the effect that it is approved provisionally. Therefore further action in approving them finally is erroneous as the approval of the classification list can never be provisional and the e made finally or simultaneously demand for short levy is to be issued within the period of limitation u/s 11A of ....
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.... the impugned order. He relies upon the judgment of the Hon'ble Bombay High Court in the case of M/s Jam Shri Ranjitsinghji Spt. & Wvg. Mills Co. Ltd - 2007 (218) ELT 516 (Bom.) to state that when the goods were cleared on execution of B-13 Bond and there was specific endorsements on RT-12 returns and the assessments were provisional, in that case order under rule 9B is not required. 4. Heard both sides and carefully considered the records. 5. We find that in the instant case RT-12 return and declarations were endorsed to the effect that the assessment is provisional and the demand were made against the Appellant by the revenue after the order of Hon'ble Delhi High Court and the Hon'ble Apex Court order dt. 28.4.1988. We find from the order dt. 28.4.1988 of the Hon'ble Supreme court that while disposing of other civil miscellaneous applications the Hon'ble Court directed that in cases where Notice u/s 11 A of the Central Excise Act has been served and the claims do not cover for any period beyond six months from the respective dates of the notices, the Revenue was entitled to realize the dues. Whereas in the present case we find that no show cause notice w....
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....he same was merely an undertaking to abide by the verdict of the court. Proper form of Bond is under Form 13, which has been notified for the purpose of rule 9B for provisional assessment. We further find that no show cause notice was issued by the Revenue in terms of Section 11A to the Appellant for recovery of duty, whereas in terms of Hon'ble Supreme Court order dt. 28.4.1988, the show cause be issued only for the period of six months. Once the Revenue did not issue any show cause notice u/s 11A, no demand could have been made from the Appellant. It is only under Section 11A that demands can be raised against assessee. The Revenue, having failed to issue any show cause notice, now cannot take the shelter of the bond executed by the Appellant in terms of the order passed by the Hon'ble Delhi Court. Our views are based upon the Tribunal Order in case of M/s J.K. Cotton Spinning & Weaving Mills Ltd, Kanpur Vs Collector of Central Excise, Kanapur - 1989 (23) ECR 385 wherein it was held as under : "31. Shri Ravinder Narain has cited the Tribunal's decision in Anna Saheb Bapu Bagate v. Collector of Central Excise. Bombay H. In this cause a show cause notice was initiall....
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....e on that day', that is on February 20, 1982 and accordingly, the authorities ire en tilted to make such demand with retrospective effect beyond the period of six months. But such demand, though it may include within it demand for more than six months, must be made within a period of six months from the date of the amendment. 33. There is no provision in the Act or in the Rules enabling the Excise authorities to make any demand beyond the periods mention in Section 11A of the Act on the ground of the accrual of cause of action. The question that is really involved is whether in view of Section 51 of the Finance Act, 1982. Section 11A should be ignored or not. In our view Section 51 does not, in any manner affect the vision of Section 11A of the Act. In the absence of any specific provision overriding Section 11 A, it will be consistent with rule? of harmonious construction to hold that Section 51 of the Finance An/ 1982 in so far as it gives retrospective effect to the amendments made to Rules 9 and 49 of the Rules, is subject to the provision of Section 11 A." It may be seen that the submission before the Court was not that the Department could not recover du....
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....ken or done or purporting to have been taken or done before the 20^th day of February, 1982, under the Central Excises Act and the Central Excise Rules, 1944, shall he deemed to be, and to have always been, for all purposes, as validity and effectively taken or done as if the amendments referred to in Sub-section (1) had been in force at all material times and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority : (a) all duties of excise levied, assessed or collected or purporting to have been levied, assessed or collected before the 20^th day of February, 1982, on any excisable goods under the Central Excises Act, shall be deemed to be, and shall be deemed to have always been, as validly levied, assessed or collected as if the amendments referred to in Subsection (1) had been in force at all material times; (b) no suit or other proceeding shall be maintained or continued in any court for the refund of, and no enforcement shall be made by any court of any decree or order directing the refund of, any such duties of excise which have been collected and which would has been validly collected if t....