TaxTMI 
TaxTMI 
2008 (7) TMI 258
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....etitioner to utilize cenvat credit for paying excise duties on the goods cleared for home consumption during the period from 27.2.2008 to 26.5.2008 and even thereafter; (C) That Your Lordships may be pleased to issue a writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, direction or order, directing the respondents, their servants and agents to forthwith give to the petitioner copies of all the seized documents and also the statements on which signatures of the petitioner as well as Shri Ganesh Dutt Joshi are taken by the Preventive Officers functioning under respondent no.4 herein; (D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay implementation and execution of Order No.6/2008-M (CX)/DA dated 22.2.2008 (Annexure-'N') issued by the second respondent thereby allowing the petitioner to utilize cenvat credit for discharing duty liabilities on the goods cleared by the petitioner for home consumption; (E) An ex-parte ad interim relief in terms of Para 9(C) above may kindly be granted; (F) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please....
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....: "On being asked to tender their submissions on the issue relating to withdraw of facility of monthly payment of excise duty and also the payment of Central Excise duty by utilization of CENVAT credit, Shri Yogesh Dhariyal submitted that the facility extended to them under Central Excise Law should not be withdrawn as the same would put them under financial constraint, and since they had not done any wrong." 5. Thereafter, it appears that CCCE forwarded a proposal to the Central Board of Excise & Customs (CBEC). On 22.08.2008 Order No.6/08-M(CX)/DA came to be made by Member of CBEC whereunder following directions were issued: "ORDER 5. In view of the above, I hereby pass the following order:- (i) The facility of monthly payment of excise duty by M/s. Dhariyal Chemicals, as provided under rule 8(1) of the Central Excise Rules, 2002, is ordered to be withdrawn and they are required to pay excise duty for each consignment at the time of removal of the goods with effect from 27.02.2008 to 26.05.2008. (ii) Payment of excise duty by utilisation of CENVAT credit as provided under rule 3(4) of the CENVAT Credit Rules, 2004, is ordered to be stopped with effect from 27.02....
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....rement of paragraph No.4(2) of the Notification granting an opportunity of hearing, it was submitted that such an opportunity was granted as could be seen from communication dated 16.10.2007 and bearing in mind the object and purpose of the Notification no case was made out for conducting a full-fledged proceeding as in case of regular assessment by issuing Show Cause Notice etc. That in the facts of the present case, in fact, the petitioner was aware about the purpose for which the petitioner was called and this was apparent from written submissions dated 30.10.2007 filed by the petitioner before CCCE. That the said written submissions referred to the Notification in question and therefore it was apparent that the procedure adopted by CCCE was in accordance with the requirement of Notification and there can be no violation of provisions of paragraph No.4(2) of the Notification as contended. 7.2. It was further submitted that the principles of natural justice did not warrant that in each and every case a person is required to be granted a full-fledged hearing accompanied by documents etc., especially when the person concerned is aware about the purpose for which the hearing is g....
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....(NT) dated 30.12.2006 has been issued. The Notification provides for a summary scheme which is to act as a deterrent against tax evaders by withdrawal of facilities from such persons. 10. On a plain reading of Rule 12CC of the Rules and the impugned Notification it becomes apparent that the Rule and the Notification have been framed for a specified class of persons having reasonable nexus with the object sought to be achieved, and this becomes abundantly clear when one considers paragraph No.3 of the Notification which lays down the monetary limit in which class of cases the Notification shall be made applicable. Therefore, there is no merit in the challenge to constitutional validity of the Rule and the Notification. 11. In so far as the grievance ventilated regarding lack of opportunity before passing of the impugned order by Member, CBEC, it is necessary to consider the procedure prescribed by paragraph No.4 of the Notification. The relevant part of the Notification reads as under: "4. Procedure.- (1) The Commissioner of Central Excise or Additional Director General of Central Excise Intelligence, as the case may be, after examination of records and other evidence, and ....
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....ication, may forward the proposal along with his recommendations to the Board. The latter part of the said sub-paragraph states that however, before the CCCE forwards his recommendations he shall give an opportunity of being heard to the person against whom the proceedings had been initiated and shall take into account any representation made by such person before forwarding the recommendations. Sub-paragraph No.(3) of paragraph No.4 of the Notification provides for an officer, authorised by the Board, to examine the recommendations received from CCCE and issue an order specifying the type of facilities to be withdrawn or the type of restrictions to be imposed, along with the period for which such facilities will not be available or the period for which the restrictions shall be operative. 13. The scheme that unfolds, therefore, is that the stage at which a proposal is made by the authority subordinate to CCCE, it is not necessary to grant any opportunity to the person concerned. However, CCCE is not bound by the proposal and if after considering the records and the evidence in support of the proposal CCCE finds that the evidence and the record are not sufficient to form a reaso....
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....ired and it would suffice if only the person concerned is invited for hearing. 15. The aforesaid view is fortified by language of sub-paragraph No.(3) of paragraph No.4 of the Notification which does not provide for any hearing by the authorised officer before issuing order specifying type of facilities to be withdrawn or type of restrictions to be imposed along with the period for which such facilities will not be available or the restrictions shall operate. Therefore, when at the first stage, viz. making of a proposal the person concerned has no voice, and at the final stage, when the order is issued the person concerned has no voice, the second stage, viz. when CCCE makes his recommendations the opportunity of hearing which is granted to the person concerned has to be a meaningful opportunity, and cannot be treated as a mere formality. Because that is the only stage at which the opportunity of hearing is granted. 16. Even if one accepts the fact that the scheme provided under the impugned Notification is a summary scheme in relation to class of persons who may be treated as tax evaders, once the Notification itself provides for an opportunity of hearing the same cannot be ....