TaxTMI 
TaxTMI 
2008 (9) TMI 390
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....f 1994, 3847 of 1993 and 22276 of 1993, which are being heard along with the Writ Appeals, the show cause notice(s) or the final order(s) passed under the relevant provisions of the Central Excise Act/Central Excise Tariff Act/Central Excises and Salt Act, have been challenged. 3. In all the Writ Appeals/Writ Petitions as common questions of law are involved, they were heard together and disposed of by this common judgment. 4. The writ petitioner-Madura Coats Limited-assessee (hereinafter referred to as 'the assessee') for their manufacture of sewing threads node out of cotton, nylon, polyester and polyproplene yarns, has imported man-made filaments and fibres, in the classification list annexed with the provisions of the Central Excise Tariff Act, 1986. The assessee has specifically stated that cotton, nylon, polyester and polyproplene yarns which are used for sewing threads, are being manufactured out of indigenous and imported man-made filaments and fibres which had sustained Central Excise Duty and Countervailing Duty (CVD) under the provisions of the Customs Act, in lieu of the Central Excise Duty, and therefore, for those sewing threads, the assessee is entitled to avail of....
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....on, the show cause notice (s) under the proviso to Section 11-A(1) of the Central Excises and Salt Act, were issued demanding duty retrospectively from 1-6-1987 onwards. It was submitted that except the Collector of Central Excise, Madurai, no other Central Excise Authority in India, had given such interpretation to Notification No. 53 of 1987/C.E., dated 1-3-1987. Since the interpretation would cascade the prices of commodities made out of the imported filaments or fibres, the assessee-Madura Coats Limited, the South India Mill Owners Association and the All India Tyre Manufacturers Association, represented before the Central Government/the Central Board of Excise and Customs, to issue necessary clarification as direction to the Collector of Excise, Madurai. Since the issue was pending consideration before the Central Government and the Board of Excise and Customs, the Collector of Central Excise, Madurai, and the Assistant Collector, under his jurisdiction, were requested to keep the show cause notice(s) issued, in abeyance till such information is received. However, as the Collector of Central Excise, Madurai, passed the impugned orders, the writ petitions were preferred before ....
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....formed that the assessee relied on the decision of the Supreme Court reported in the case of Thermax Private Limited (supra) and at the time of hearing of Writ Petition Nos. 19201 of 1992, 19286 and 5969 of 1993, wherein the Central Government Standing Counsel submitted before the court that since the Union of India, Central Board of Excise and Customs, and the officials of the Central Excise Collectorate, Madurai, are parties to those Writ Petitions and whatever the decision as would be given, the Central Government would abide by the decision of this Court and on the basis of such submission, the learned single Judge of this Court reserved orders; while so, the Central Government Standing Counsel submitted before the learned single Judge that he has received the communication to the effect that the Central Government is going to issue appropriate Notification clarifying the subject matter of the Writ Petitions and therefore, rendering decision in those Writ Petitions shall be kept in abeyance. The Central Government thereafter issued notification No. 104 of 1993/C.E., dated 28-12-1993, directing that for the words, "has already been paid", in the Notification No. 31 of 1993/C.E, ....
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....ts Limited, the Headings 52.03 and 52.04 of Chapter 52 (cotton) of the Central Excise Tariff Act specifies "Yarn includes sewing threads", though is no ambiguity, the Central Excise Authorities at Madurai, taking the view that the yarn and sewing threads are different commodities, sought to impose second incidence of Excise Duty of cotton sewing threads made out of duty paid yarn. The Central Government, vide Notification No. 318 of 1986/C.E, dated 22-5-1906, exempted imposition of Excise Duty of doubled or multi-folded yarn under Chapter 54 or Chapter 55 of Central Excise Tariff Act. The Central Excise Authorities of Madurai Collectorate, holding that since Chapter 52 (cotton) was not mentioned in the above Notification No. 318 of 1986/C.E, dated 22-5-1986, the second incidence off Excise Duty of Rs. 15/kg. could be imposed on cotton sewing threads awaiting the clarification from the Board of Central Excises and Customs. The Central Government, vide Notification No. 435 of 1986, dated 6-10-1986, substituted Chapter Nos. 52, 54 and 55, in Notification Nos. 318 of 1986, dated 22-5-1986, in the place of Chapter 54 or 55. In view of the Central Government Notifications, the Central Ex....
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....actured out of yarn falling under Chapter 52, 54 or 55 of the said Schedule on which the appropriate duty of excise has already been paid. 4 54.02 and 54.04 Split yarn Nil If such split yarn has been produced from mother yarn for split yarn on which the appropriate duty of excise under the said Schedule or, as the case may be, the additional duty leviable under Section 3 of the Customs Tariff Act, 1975 (51 of 1975), has already been paid. 17. It was submitted by the assessee that the Revenue issued the impugned show cause notice merely on the ground that the sentence "additional duty leviable under Section 3 of the Customs Tariff Act, 1975 (51 of 1975) has already been paid", has not been mentioned in Column No. (4) of Sl. No. 3 under the sub-heading Nos. 52, 54 and 55 of the said Notification dated 23-12-1986, as quoted above. 18. When the Writ Petition(s) in question, were preferred, aforesaid facts were brought to the notice of the Revenue, which took up the matter up to the Central Government, whereinafter, Revenue issued Central Excises Notification No. 104 of 1993, dated 28-12-1993. It is thus seen that the Ministry of Finance, Department of Revenue, Government of Indi....
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.... twisted yarn, there is no useful purpose would be served by remanding the matter back to the Departmental Authorities for considering whether the yarn in question is twisted or not. The appeal is dismissed without any order as to costs." 21. Learned Additional Solicitor General appearing for the Revenue giving reference to a decision of the Division Bench of this Court in the case of Madura Coats Limited v. Commissioner of. C. Ex., Madurai, reported in 2008 (227) E.L.T. 355 (Mad.), submitted that in the case of the very same appellant/writ petitioner/assessee, when a show cause notice was challenged, the Division Bench of this Court, instead of interfering with the matter, allowed the petitioner therein to avail of the alternative remedy. 22. On instructions, learned Additional Solicitor General appearing for the Revenue further submitted that there is no dispute with regard to the classification of the "goods" which are covered under Sl. Nos. 3 and 4 (table quoted above) and there is also no dispute in the fact that the assessee has already paid the additional customs duty on the same. Learned Additional Solicitor General fairly accepted that the case of the appellant/writ peti....
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....238 (S.C.), the Supreme Court interfered with the show cause notice issued on the basis that the yarn in that case was a twisted yarn. The Apex Court in that case held that no useful purpose would be served by remanding the matter to the departmental authorities, as the principle had already been communicated by the decisions of the Supreme Court in two cases, namely Commissioner of Central Excise, Jaipur v. Banswara Syntex Ltd., reported in 1996 (88) E.L.T. 645 = 1996 (11) SCC and Porritts & Spencer (Asia) Ltd. v. Collector of Central Excise, New Delhi, reported in 1999 (106) E.L.T. 18 = 1995 Supp. (3) SCC 219, which were relied upon by the Tribunal in that case [2005 (183) E.L.T. 238 (S.C.)] (supra) and not disputed by the counsel for the Revenue. 27. In the case of Union of India v. Vicco Laboratories, reported in 2007 (218) E.L.T. 647 (S.C.) = 2008 (2) C.T.C. 511, the Supreme Court, while deciding the question of interference with the show cause notice by a Writ Court, held as follows : "30. Normally, the Writ Court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their conten....
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....ter seven years to the alternate remedy. The learned Additional Solicitor General fairly states, in the circumstances, that the order under challenge may be set aside and the writ petition (Civil Misc.) Writ Petition No. 747 of 1962) may be restored to the file of the High Court to be heard and disposed of on merits. This is appropriate and it should be done expeditiously. 4. Order on the appeal accordingly. 5. No order as to costs." 29. In the cases on hand, in all the cases, final orders have been passed, except in one case in which the show cause notice is under challenge. It has been accepted by the learned Additional Solicitor General appearing for the Revenue that the "goods" are covered by the subsequent clarification made by the Central Government and the decision of the Supreme Court in the case of Hyderabad Industries Limited [1995 (78) E.L.T. 641 (S.C.) = 1995 (5) SCC 338] (supra) and the Constitution Bench decision of the Supreme Court in the case of Hyderabad Industries Limited [1999 (108) E.L.T. 321 (S.C.) = 1999 (5) SCC 15]. 30. It is also not in dispute that the Writ Petition Nos. 3847 and 22276 of 1993 which are before us, are pending before this Court for more....