2011 (2) TMI 23 - AT - Central Excise

Recovery of duty - from the buyer but not deposited with the Central Government - validity of Section 11D has been upheld by the Hon ble High Court but the petitions of the assessees have been allowed only on the ground of lack of authority in the respondent to issue notices challenged in the writ petitions before the High Court, at the same time preserving the liability created under Section 11D assessee s appeal also is allowed, cross-objection filed by Revenue, only in the nature of comments upon/reply to Revenue s appeal dismissed

Summary

Issues:
Assessees claiming exemption under Notification No.60/91 for upgraded technology products - Validity of show-cause notices issued by Superintendent of Central Excise - Challenge of notices before Madras High Court - Withdrawal of Special Leave Petition by Union of India - Commissioner's order confirming demand - Challenge on merits by assessees and Revenue - Retrospective legislation for recovery of excise duty - Quashing of show-cause notices by High Court - Liability under Section 11D - Lack of authority in issuing notices - Setting aside of impugned order.

Analysis:

The assessees were involved in manufacturing asbestos cement products and started producing upgraded technology products using fly ash. They claimed exemption under Notification No.60/91 for these products. The Superintendent of Central Excise issued ten show-cause notices demanding recovery of excise duty allegedly collected from customers. The notices were challenged in the Madras High Court, which upheld the validity of Section 11D but quashed the notices due to the absence of authority in issuing them.

The Union of India withdrew a Special Leave Petition before the Supreme Court, leading to a fresh hearing. The Commissioner passed an order confirming a demand of Rs.24,62,40,909, which was challenged by the assessees on merits. The Revenue contended that since the notices were quashed by the High Court, no notice remained for adjudication. The Revenue argued for fresh notices due to retrospective legislation for recovering excise duty.

The Tribunal noted that the High Court had quashed the show-cause notices, rendering them non est and non-adjudicable. The liability under Section 11D was preserved, and the Union of India was directed to quantify and recover any outstanding liability in accordance with the law. The Tribunal set aside the Commissioner's order as the quashed notices could not be adjudicated upon, allowing both the assessees' and Revenue's appeals on this ground.

In conclusion, the Tribunal allowed both appeals, emphasizing the lack of surviving notices for adjudication due to the High Court's quashing of the show-cause notices. The liability under Section 11D was upheld, but the absence of valid notices rendered the impugned order non-adjudicable.