2013 (1) TMI 327 - HC - Central Excise

Manufacture - Section 2(f) of the Central Excises and Salt Act, 1944 - Processing of concentrated basic pesticidal chemical - Activity undertaken by petitioner is already held to be not constituting manufacture by a competent Tribunal - Department show s that it becomes manufacturing activity because of notification dated 27th July, 1995 Held that - It is obvious that a statutory definition as contained in Section 2(f) of the Act has interpreted by a competent Tribunal could not have been modified by Board by issuing such notification. Though learned Assistant Solicitor General of India is right in submitting that this Court should not interfere at show-cause notice stage, in present facts, issuance of such show-cause notice in the light of Circular, which is not holding field, is unsustainable. Circular dated 27th July 1995 quashed - In favour of assessee

Summary

Issues:
Challenge to show-cause notice based on a notification affecting the definition of "manufacture" under the Central Excises and Salt Act, 1944.

Analysis:
The petitioner's counsel argued that the controversy aligns with previous orders of the Division Bench and a judgment from the Delhi High Court. The Tribunal had previously determined that the processing carried out by the respondents did not amount to manufacture, a decision that had attained finality. The Board then issued a notification in July 1995, leading to the issuance of the impugned show-cause notice to the petitioner.

The petitioner contended that the Board could not amend the concept of manufacture through the notification, and as the definition remained unchanged, the Tribunal's adjudication should stand. The respondent's counsel, however, argued that challenging the show-cause notice at this stage was premature and that the petitioner could raise objections in response to the notice, allowing the Department to consider the contentions.

The High Court found that the activity in question had already been determined not to constitute manufacture by a competent Tribunal, and the attempt to reclassify it as manufacturing activity through the 1995 notification was deemed unsustainable by both the Bombay and Delhi High Courts. The Court concluded that the statutory definition in the Act, as interpreted by the Tribunal, could not be altered by the Board through such a notification, leading to the setting aside of the notification.

Although acknowledging the general principle against interference at the show-cause notice stage, the Court held that in this specific case, the issuance of the notice based on an outdated Circular was unsustainable. Consequently, the Court quashed the circular and the show-cause notice, allowing the respondents to take appropriate legal action if they had other grievances related to the petitioner's manufacturing activities.

Ultimately, the petition was allowed, and the Court made the rule absolute in the aforementioned terms, with no costs incurred by either party.