TaxTMI 
TaxTMI 
2009 (6) TMI 111
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....ed on 28-8-2001 based on Circular dated 28-2-2001. 3. Similarly, in Special Civil Application No. 2670 of 2004, this very Circular and also the show-cause notice dated 23-1-2004 issued by the Additional Director General, DGCEI, Ahmedabad, were challenged. 4. Special Civil Application No. 1608 of 2002 was admitted and rule was issued by this Court on 1-2-2002 and by way of interim relief, the Court has passed an order to the effect that pursuant to the show-cause notice, hearing may go on but final adjudication shall await till further order. 5. likewise, Special Civil Application No. 2670 of 2004 was admitted and rule was issued on 1-3-2004 and ad interim relief was granted to the effect that pursuant to the impugned show-cause notice dated 23-1-2004, hearing may go on but final adjudication shall not be made. The said ad interim relief was continued till further order vide order dated 19-4-2004. 6. Civil Application No. 3456 of 2009 was filed by Union of India for fixing early date of hearing of Special Civil Application No. 1608 of 2002. Since the petitions are heard by the Court, the said Civil Application no longer survives and it is accordingly disposed of. 7. S....
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....rds the use of I.V. Fluids in Notification No. 6/2000, which was in force during the relevant period i.e. 4-5-2000 to 28-2-2001, the impugned show-cause notices have been issued raising demand of central excise duty for the aforesaid period, seeking to import a restriction in Notification No. 6/2000, which was never there. 12. It was also urged before the Court that the adjudication before the respondent authorities would be a futile exercise in view of Circular No. 334/1/2001-TRU issued by the Joint Secretary to the Department of Revenue, Ministry of Finance, whereby all Chief Commissioners of Customs and Central Excise as well as Commissioners of Customs and Central Excise throughout the country have been directed as to how the changes made in the Union Budget presented on 28-2-2001 were to be implemented. In the said Circular, which is binding on the Adjudicating Authorities, it has, been informed that the description of I.V. Fluids has been changed to I.V. Fluids for sugar, electrolyte or fluid replenishment and that this change was clarificatory in nature. It has, therefore, been contended that the Secretary to the Ministry of Finance has no authority to issue such clarific....
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.... assessee, they have right to claim enforcement of the same prospectively. 16. The decision of the Hon'ble Supreme Court in the case of Sandur Micro Circuits Limited v. Commissioner of Central Excise, Belgaum, 2008 (229) E.L.T. 641 (S.C.), is relied on for the proposition that the issue relating to effectiveness of a Circular contrary to a notification statutorily issued has been examined by the Court in several cases. A Circular cannot take away the effect of the notifications statutorily issued. In fact, in certain cases, it has been held that the Circular cannot whittle down the exemption notification and restrict the scope of the exemption notification or hit it down. In other words, it was held that by issuing a Circular, a new condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed. 17. The decision of the Hon'ble Supreme Court in the case of Commissioner of C. Ex., Bolpur v. Ratan Melting & Wire Industries, 2008 (231) E.L.T. 22 (S.C.) = 2008 (12) S.T.R. 416 (S.C.), is relied on for the proposition that Circulars and instructions issued by C.B.E. & C. no doubt binding in law on the authorities under the resp....
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....as not in the original notification and this was an addition to the notification which is not permissible. It is, therefore, contended before the Court that the said communication issued by the Joint Secretary is in excess of jurisdiction and since the show-cause notices issued by the respondent-authorities are without jurisdiction, the same are also challenged before the Court in the present petitions. 20. Both the learned Counsels for the petitioners at length taken us through all these authorities and also the contents of the show-cause notice. They have also submitted before the Court that the show-cause notices were issued only on the basis of the Circular and no such action was taken prior to the Finance Bill of 2001 and consequently, notification was issued. They have, therefore, submitted before the Court that the impugned action on the part of the respondent-authorities is in excess of jurisdiction and the same deserves to be quashed and set aside. 21. On behalf of the respondent authorities, Mr. Darshan Parikh and Mr. R.J. Oza, learned Senior Standing Counsels, on the other hand, have made the submission that the issuance of show cause notices by the respondent auth....
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.... still remains as to whether the issuance of show-cause notices is solely based on the Circular or any independent material is available with the respondent authorities so as to enable them to issue such show-cause notices. From the plain reading of the show-cause notices, it appears to us that while issuing the show-cause notices, the respondent authorities have considered the products as well as the contents of the products and based on that, they have prima facie formed an opinion that on scrutiny of the seized documents, it was revealed that the petitioners have classified the products deeming them as Intravenous Fluids. After forming this prima facie view, they have also referred to the Circular dated 28-2-2001/1-3-2001. It is, therefore, to be decided as to whether the issuance of show-cause notice can be said to be only based on the Circular or not ? While considering this issue, we are of the view that it cannot be said at this stage that issuance of show-cause notice is without jurisdiction. The petitioners are called upon to explain about their products and if they are Intravenous Fluids, certainly they are entitled to exemption. This issue is yet to be adjudicated and it....