TaxTMI 
TaxTMI 
2006 (8) TMI 185
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....nd has had various round of litigation in different forums. In order to determine the controversy and the point involved in these appeals the following facts may be noticed. 3. M/s. National Tobacco Company Limited, Agarpara, a manufacturer of cigarettes falling under erstwhile Central Excise Tariff Item No. 4-II(2), and holder of Central Excise Licence L-4 No. 3/84 for the manufacture of cigarettes, was merged with M/s. Mirpara Tea Company effective from 1-4-1977. Consequent to this, it became a Division of newly formed M/s. Duncans Agro Industries Limited, Calcutta. Thereupon, Central Excise Licence L-4 No. 1-Cig/I/V/78 dated 18-2-1978 for the manufacture of cigarettes was issued to M/s. National Tobacco Company. 4. In April 1984, M/s. National Tobacco Company was demerged from M/s. Duncans Agro Industries Limited and was made a wholly owned subsidiary of M/s. Duncans Agro Industries Limited in the name and style of M/s. New Tobacco Company. M/s. Duncans Agro Industries Limited, is the respondent in the two appeals filed by the Revenue and the appellant in Civil Appeal No. 754 of 2001 and would be referred to as the assessee. 5. As a result of demerger, a new Central Exc....
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....e ground that the show cause notice dated 1-10-1986 issued to the assessee alleging contravention of the central excise duty in respect of cigarettes manufactured and cleared from the factory at Agarpara during the period September, 1981 to February, 1983 and also addendum to the show cause notice dated 1-10-1986 was in excess of the jurisdiction and/or without authority of law inasmuch as the assessee had been paying the excise duty on the basis of the provisional assessments pursuant to filing of provisional price lists and till the price lists and the assessments were finalised a show cause notice could not be issued. According to the petitioner Section 11A of the Central Excises Salt Act, 1944 (for shot "the Act") could not be invoked in cases where duties are paid under provisional assessment made under Rule 9B of the Central Excise Rules, 1944 (for short "the Rules") without first finalizing the assessment. The Division Bench of the High Court dismissed the writ petition by its order dated 12-8-1988 reported in Duncans Agro Industries Ltd. v. Union of India & Ors.-1989 (39) E.L.T. 511 (Del.). Contention of the assessee that the cause of action for invoking Section 11A would a....
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....djudication" on the ground that after finalising of the assessment there would be nothing left for the Collector of Central Excise, Delhi for consideration or decision and therefore, this sentence in the order should be set aside. The appeal was disposed of by observing : "....We do not understand the impugned order as recording a finding overruling the contention raised by the appellant the collector had no jurisdiction to adjudicate on the strength of show cause notice dated 1-10-86 or as to whether after finalisation of assessments anything would be left for the Collector to decide. Thereafter the appellant cannot have any grievance. It is open to the appellant to raise these aspects if after finalisation of assessment the Collector takes up the proceeding before him for adjudication in this matter. With this observation, the appeal is disposed of." [Emphasis supplied] 12. Thus the liberty to take up this point was reserved with the assessee after the finalisation of the proceedings. 13. In pursuance to the interim directions issued by the Collector of Central Excise, Delhi in its order dated 27-3-1991 the office of the Assistant Collector Central Excise, Kharda D....
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....ng a penalty of Rs. One crore. 18. Assessee being aggrieved filed Appeal No. E/1622/99-A/92E/ 2095/2000-A, which has culminated in the impugned order. Tribunal accepted the appeal partly. Duty liability was set aside as it had already been adjudicated in the earlier proceedings but upheld the levy of penalty. While deleting the duty liability the Tribunal observed thus : "From this, it is clear that the Collector had left the duty demand raised in the show cause notice dated 1-10-1986 also to be included in the finalisation of the provisional assessment which was pending from 1973. The Revenue had not challenged that order. Pursuant to that order, the Assistant Collector had issued an Addendum to the assessees on 20-2-1992 making the materials relied upon in the show cause notice dated 1-10-1986 as part of the materials for finalising the assessments and the duty demand was finalised after assessees made their representations. That duty demand became final as the Revenue did not challenge it. The order passed on the assessees' appeal against that duty demand was also not challenged by both sides. We, therefore, hold that the duty demand made by the Assistant Collector was a c....
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....ej & Boyce Mfg. Co. (Pvt.) Ltd., (Civil Appeal No. 12824 of 1989 decided on 8-3-90). The Assistant Collector Central Excise, Kharda Division, Calcutta thereafter issued addendum dated 20-2-1992 incorporating the allegations made in show cause notice dated 1-10-1986 in the show-cause notice dated 8-5-1984. The effect of the order passed by the Commissioner of Central Excise, Delhi was that the Assistant Collector Central Excise, Kharda Division, Calcutta alone had the jurisdiction to finally adjudicate and determine the assessable value of the goods cleared from the assessee's factory for the entire period and the consequent duty liability. Either party wishing to dispute the determination made by the Assistant Collector Central Excise, Kharda Division, Calcutta had to do so by invoking the right of appeal to the Commissioner of Appeals, Tribunal and the Supreme Court. In addition the Department could have invoked the short levy provision under Section 11A within a period of six months or invoked the extended period of limitation of 5 years under proviso to Section 11A provided the conditions laid down in the proviso were satisfied. The two show cause notices were finally adjudicate....