TaxTMI 
TaxTMI 
2022 (3) TMI 1164
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.... is demanded as also imposition of penalty in terms of Section 11AC of the Act of 1944 read with Rules 17 & 25 of the Central Excise Rules, 2002 (for short 'the Rules of 2002') is proposed. Aggrieved by service of show-cause notice dated 30.3.2020, petitioner filed instant writ petition seeking for following reliefs:- "i. That, this Hon'ble Court may kindly be pleased to quash and set aside the impugned show cause notice dated 30/03/2020 issued vide F. No.574/CE/47/2016/Inv. by the Principal Additional Director General, Directorate General of GST Intelligence, New Delhi. ii. Cost of the petition may also be granted to the petitioner. iii. Any other relief, which this Hon'ble Court deem fit and proper, may also kindly be granted to the petitioner, in the interest of justice." 2. Mr. G. Tushar Rao, learned Senior Advocate for petitioner would submit that product in which petitioner is dealing is classified under Tariff Heading- 21069020 of the First Schedule to the Central Excise Tariff Act, 1985 (for short 'the Act of 1985') and it was brought under the Compounded Levy Scheme. The central excise duty is to be paid and collected o....
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....itted report on 8.6.2015 based upon which capacity re-determination order was passed on 30.6.2015. Likewise, petitioner got installed new PMPM of MRP Rs. 4/-. It was also inspected by Chartered Engineer and based on report, final capacity redetermination order was passed. Respondent Department behind the back of petitioner engaged a Consultant to prepare sweeping general report for determination of maximum packing speed of PMPM (FFS Rotary Machine). Said Consultant based on new formula proposed by respondent, arrived at a speed at which PMPM can be operated and pack pouches per minute. Said technical opinion renders a formula which is materially different from that which had been proposed by respondent as there is mention of multiplication factor of .80. He submits that aforementioned report was by a Assistant Professor from IIT, Delhi. After submission of said report, petitioner submitted an application under the Right to Information Act, 2005 on 24.7.2020 for supply of report submitted by Consultant because that was the sole basis for issuance of impugned show-cause notice to petitioner. However, information as sought for has been denied to petitioner mentioning Section 8 (1) (h)....
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....al Trading Co. reported in (2005) 11 SCC 518; Commissioner of Income Tax, Gujarat vs. Vijaybhai N Chandrani reported in (2013) 14 SCC 661; order dated 26.6.2019 passed by this High Court in WPT No.22/2019 (M/s RK Associates & Hoteliers Pvt. Ltd. vs. UOI & ors); order dated 27.6.2019 in WPT No.94/2019 (Veer Bhadra Singh vs. UOI & ors). With respect to authority and jurisdiction of the Principal Additional Director General to issue show-cause notice, he submits that vide Notification dated 10.2.2015 the officers of various ranks of Directorate General of Central Excise Intelligence have been appointed by the Board as the officers of Central Excise of the corresponding ranks for exercise of all powers under the Act of 1944 and the Rules made thereunder. Exercising the powers conferred vide Notification dated 10.2.2015, respondent based on intelligence information of misdeclaration by petitioner of maximum packing speed of PMPM at which they can be operated, had conducted investigation and found that there is difference in number of funnels mentioned in report provided by Chartered Engineer from that provided by PMPM manufacturers. All machines installed and operated at factory prem....
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....ragraph 1 to 4 of the Circular dated 10.2.2015 read as under:- "1. Attention is invited to Notification no 38/2001 - C.E (N.T) dt 26-6-2001 as amended from time to time whereby the officers of various ranks of Directorate General of Central Excise Intelligence have been appointed by the Board as the officers of Central Excise of the corresponding ranks for exercise of all powers under the Central Excise Act, 1944 and rules made thereunder, throughout the territory of India. 2. Officers of DGCEI, as Central Excise Officers, issue show cause notices in cases investigated by them. These Show Cause Notices are adjudicated by either the field Commissioners or by the Commissioner (adjudication). Cases to be adjudicated by Commissioner (adjudication) were specified by the orders of the Board. 3. Pursuant to the Cadre structuring and reorganization of CBEC, new posts in the rank of Principal Commissioners of Central Excise or Commissioners of Central Excise have been created in DGCEI, for various purposes including for adjudication of cases. Additional Director General (Adjudication) in DGCEI shall adjudicate cases where the show cause notices are issued by the o....
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....e in respect of goods or items given by the appropriate authority." 10. Hon'ble Supreme Court in case of Special Director & anr Vs. Mohd. Ghulam Ghouse & anr reported in (2004) 3 SCC 440 has held thus:- "5.This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrie....
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....facts of present case are considered, it would reveal that respondent conducted investigation based on intelligence information. Upon detailed investigation, as appearing in show-cause notice, it revealed that there was mis-declaration by petitioner, based upon which show-cause notice is issued to petitioner calling upon petitioner to submit reply within a particular period. Respondent has been authorized under Circular dated 10.2.2015 to issue show-cause notice. Hence, in the considered opinion of this Court, impugned show-cause notice cannot be stated to be issued by an authority not having jurisdiction. Petitioner is having efficacious remedy of approaching the authority issuing impugned show-cause notice by submitting reply explaining his case. 14. Case laws relied upon by learned Senior Counsel for petitioner are on different facts. In case of Vicco Laboratories (supra), challenge to notice was made on the ground that authority issuing notice is seeking to reopen and re-litigate the issues which have been finally concluded by decision of the High Court as well as by Hon'ble Supreme Court in favour of writ petitioner therein, therefore, notice has been issued in arbitrar....