TaxTMI 
TaxTMI 
2004 (10) TMI 112
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....een issued by an officer other than the Commissioner, under the proviso to Section 11A, the entire proceedings for other purposes of imposition of penalty and confiscation would also be without jurisdiction. The referral Bench was of the view that a combined notice having been issued under two different provisions of law for recovery of duty under Section 11A of the Central Excise Act, 1944 and for confiscation and levy of penalty under Section 124 of the Customs Act, 1962 read with Section 12 of Central Excise Act, 1944, even though part of the notice has been issued without jurisdiction, the other part could survive having been issued by an officer having jurisdiction. The above disputed issue has been referred to the Larger Bench. 2.We ....
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....he provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent the provisions of this sub-section shall have effect, as if, for the words "Central Excise Officer" the words "Collector of Central Excise" and for the words "six months" the words "five years" were substituted."(emphasis supplied) It is seen that the proviso to Section 11A requires show cause notice to be issued by the Commissioner where the contravention of provisions of the Act of the rules is made thereunder with an intent to evade payment of duty. As such the scope of the proviso takes within its sweep not only a situation of non-levy or non-payment of duty but it also takes in contravention of the provisions of ....
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....we find that the view of five members of the Tribunal are available and it was, by majority, held that the show cause notice cannot be segregated into portions for the purposes of demand of duty and for imposition of penalty and confiscation proceedings. It was held that once a show cause notice has been held without jurisdiction for the purposes of demand of duty the same would be invalid in its totality. Against the said order of the Tribunal appeal was filed by the Revenue before the Hon'ble Supreme Court as reported in 2003 (153) E.L.T. 241 (S.C.). Department's challenge was not successful. Though the point in dispute was not directly raised before the Supreme Court by the Revenue, but the ratio of the Supreme Court decision can be made....
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....erged with the Hon'ble Supreme Court decision and all the issues decided by the Tribunal, though not independently examined by the Hon'ble Supreme Court, attained the status of having been finally decided. As such we are of the view that the Alcobex decision having been confirmed by the Apex Court settles the law on the disputed issue. We also refer to the Larger Bench decision in the case of Transcab International reported in 2003 (157) E.L.T. 149 (Tri. - Larger Bench) wherein it was observed that when earlier decision of the Tribunal was not challenged by the Revenue before the Supreme Court it is not proper for the Tribunal to attempt reconsideration of the view taken by the Larger Bench. Though the earlier decision in the case of Alcobe....
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..... H.M.M. Ltd. reported in 1995 (76) E.L.T. 497 (S.C.) clarified that the question of penalty would arise when the department is able to sustain its demand under notice. The said decision of the Hon'ble Supreme Court was taken note by this Tribunal in the case of Eveready Industries India Ltd. reported in 2001 (138) E.L.T. 1287 (Tri.) wherein originally there was difference between two members and the matter was referred to the third member. By majority, it was held that when the demand of duty is dropped on the point of limitation no penalty can be imposed as the proceedings are interlinked with the confirmation of demand of duty. In subsequent case of(c) P & B Pharmaceuticals (P) Ltd. v. CCE reported in 2003 (153) E.L.T. 14 (S.C.) held as....