TaxTMI 
TaxTMI 
2019 (7) TMI 1347
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....90 to 22099 and 22201 to 22203 of 2018 were before this Court. 3 All three aforesaid learned counsel before this Court submitted without any disputation or disagreement that the central theme or in other words, the core issue in these 18 writ petitions is the same and therefore, a common order is being passed. Though obvious, it is made clear that all 18 writ petitions were heard together. 4 These writ petitions have been filed assailing 'Show Cause Notices' ('SCNs' in plural and 'SCN' in singular for brevity) issued to writ petitioners. Though these writ petitions have been filed assailing SCNs, the prayer is not necessarily for issue of writs of certiorari. The prayers are couched in a language wherein and whereby writs of prohibition have been sought qua second respondent (to be noted, second respondent issued the SCNs, which shall hereinafter be referred to as 'impugned SCNs' in plural and 'impugned SCN' in singular). In other words, prayers seek issue of writ of prohibition prohibiting second respondent from proceeding pursuant to impugned SCNs. As it was submitted that these writ petitions may please be treated as petitions assail....
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....ld not be imposed under relevant rules of CER for making what according to second respondent is willful mis-declaration while claiming the rebate. With regard to this willful mis-declaration, it is to be noticed that it is the case of second respondent that writ petitioners had availed higher drawback by not striking off inapplicable portions relating to CENVAT credit. Vide impugned SCNs, it has been averred that this claim without striking off inapplicable portion has been done willfully with the intention of misdeclaring and misleading which was intended to avail the benefit of higher rate of drawback from the department. 11 This takes us to the central theme / core issue. The central theme / core issue emanating from rival submissions have been captured by this court in proceedings dated 05.07.2019 and the same reads as follows : "All these 18 writ petitions go together. 2.This Court is informed that the facts are similar. More importantly, this Court is informed that the central theme / core issue which falls for consideration in these 18 writ petitions is the same. 3.Mr.T.Mohan, learned counsel appearing on behalf of counsel on record for petition....
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....d, all three learned counsel before this court submitted that rival submissions in a nutshell and central theme / core issue in 18 writ petitions is as encapsulated and captured by this court in the aforesaid proceedings dated 05.07.2019. 13 As the pivotal rival submissions and core issue as captured in the earlier proceedings have been reproduced supra, the crux and gravamen of these petitions have been set out. Therefore, this court now embarks upon the exercise of dispositive reasoning in paragraphs to follow. In dispositive reasoning, rival submissions made with little elaboration (wherever it is considered imperative) and case laws pressed into service shall also be referred to at relevant places. 14 Learned counsel for writ petitioners placed enormous reliance on a Division Bench judgment of this court in Eveready Industries India Ltd. Vs. CESTAT, Chennai reported in 2016 (337) E.L.T. 189 (Mad.). According to learned counsel, Eveready Industries principle is to the effect that a SCN under section 11A of CE Act cannot be issued without assailing relevant refund order made under section 35E of CE Act. It was specifically submitted that order of refund / rebate made under ....
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.... of CE Act is correct. This takes us to the order of Larger CEGAT Bench. The order of Larger CEGAT Bench has been reported in 1994 (73) E.L.T. 433 (Tribunal). Larger CEGAT Bench principle is to the effect that Sections 35E and 11A of CE Act operate in different realms and they are being invoked for different purposes. 18 In (142) ELT 522 (SC) Asian Paints, Larger Bench of Hon'ble Supreme Court while returning a verdict that CEGAT Larger Bench view is correct repelled the contention that recovery of excise duty cannot be made pursuant to an appeal filed after invoking the provisions of section 35E, if the time limit provided under section 11A has expired. In this regard, it was specifically submitted by learned Revenue counsel that it is axiomatic that the converse will also operate. In other words, it was specifically submitted by learned Revenue counsel that a SCN under section 11A can certainly be issued though time limit for preferring an appeal under section 35E(2) had expired. 19 There was also a reference to Madurai Power Corpn. (P.) Ltd. case reported in 2008 (229) E.L.T. 521 (Mad.), but there is no disputation that civil appeal against Madurai Power Corpn. case is....
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....ited is concerned, the difficulty faced by the Tribunal was the different periods of limitation prescribed under Sections 11A and 35E. The case before the Full Bench of the Tribunal in Asian Paints (India) Limited was on the reverse. As seen from Paragraph 1 of the decision of the Full Bench, the only issue referred for the consideration of the Larger Bench revolved around the limitation prescribed in Section 35E(3) and Section 11A. We are not dealing with a case where there is a logjam between two different provisions. Therefore, the said decision, which was also confirmed by the Supreme Court in Asian Paints (India) Limited [2002 (142) E.L.T. 522], cannot be of any application." 22 By way of reply to this distinction on two aspects, learned counsel for writ petitioners submitted that whether an OIO has been given finality as in the instant case or whether OIO went against the assessee who succeeded by carrying it in appeal to appellate authority does not make any difference to the principle. With regard to second aspect of distinction qua Eveready which was projected by Revenue counsel, learned counsel for writ petitioner submitted that Grasim Industries no doubt was not broug....
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....eme Court. 26 Grasim Industries principle and Asian Paints principle are to the effect that Sections 35E and 11A of CE Act operate in different fields and are being invoked for different purposes. 27 A close perusal of Section 11A reveals that a SCN can be issued under five different situations, namely (a) duty not levied, (b) duty not paid, (c) duty short levied, (d) duty short paid, and (e) duty erroneously refunded. They are five distinct and different situations and circumstances. 28 If the argument of writ petitioners are to be accepted, then the fifth scenario contemplated by Section 11A would be rendered otiose. Provisions of law cannot be read in such a manner. Whereas on the contrary, a constructive and harmonious reading of sections 35E and 11A of CE Act and interplay between the two in a manner understood by a Larger CEGAT Bench which has been held to be correct by Hon'ble Supreme Court as well as Grasim Industries case would not render the fifth limb of Section 11A, i.e., 'duty erroneously refunded' situation otiose. Therefore, this Court is convinced that Section 11A should necessarily be read in the manner instructively laid down by Hon'ble....
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.... and impact the adjudication pursuant to impugned SCNs and therefore, this Court refrains itself from treading into that arena. 32 This Court has already extracted and reproduced 05.07.2019 proceedings, wherein the rival submissions in a nutshell and narrowed down the core issue that emanates from the same, have been captured. 33 This takes us to the scope of exercise of writ jurisdiction when SCNs are challenged. No elaboration is required to say that the scope of interference in writ jurisdiction is very limited when SCNs are called in question. The exceptions to this rule are very few and in the instant case, as alluded to supra, the exception was projected on the basis of jurisdictional fact. As jurisdictional fact, i.e., preferring an appeal against OIO has been answered against writ petitioners, it follows as a sequitter that this case does not fall in any of the exceptions to the rule of limited and restricted exercise of writ jurisdiction when SCNs are assailed in writ jurisdiction. 34 This Court also reminds itself of a judgment of Hon'ble Supreme Court in Kunisetty Satyanarayana case being Union of India v. Kunisetty Satyanarayana reported in (2006) 12 SCC 28....