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2008 (7) TMI 258 - HC - Central ExciseConstitutional validity of Rule 12CC of CER and the Notification No. 32/2006-C.E. - Summary scheme provided under notification no. 32/2006-C.E. (N.T.) in relation to tax evaders - impugned scheme is to act as a deterrent against tax evaders by withdrawal of facilities from such persons such as withdrawal of payment of duty by utilization of credit held that validity of impugned notification farmed for a specific class of persons can not be challenged Excise Rule 12CC is also valid
Issues Involved:
1. Validity of Rule 12CC of the Central Excise Rules, 1944 and Notification No. 32/2006-C.E. (N.T.) dated 30.12.2006. 2. Legality of Order No. 6/2008-M (CX)/DA dated 22.2.2008. 3. Alleged violation of principles of natural justice. 4. Entitlement to utilize CENVAT credit for paying excise duties during the specified period. 5. Provision of seized documents and statements to the petitioner. Detailed Analysis: 1. Validity of Rule 12CC and Notification No. 32/2006-C.E. (N.T.): The petitioner challenged Rule 12CC and the Notification as ultra vires Article 14 of the Constitution of India, arguing that they deprived the assessee of the legitimate right to utilize CENVAT credit and violated principles of natural justice. The court found that Rule 12CC grants power to the Central Government to issue notifications placing specific restrictions on certain categories of persons to prevent evasion of duty. The Notification provides a summary scheme acting as a deterrent against tax evaders by withdrawing facilities from such persons. The court concluded that the Rule and the Notification have a reasonable nexus with the objective sought to be achieved and are not ultra vires the Constitution. 2. Legality of Order No. 6/2008-M (CX)/DA: The petitioner contended that the order was ex parte and violated principles of natural justice. The court examined the procedure prescribed by paragraph No. 4 of the Notification, which requires the Chief Commissioner of Central Excise (CCCE) to give an opportunity of being heard to the person against whom proceedings have been initiated before forwarding any proposal to the Board. The court found that the CCCE had not complied with this requirement, making the procedure adopted bad in law. However, considering the facts and circumstances, the court did not quash the order but adjusted the period of restriction accordingly. 3. Alleged Violation of Principles of Natural Justice: The petitioner argued that no proper opportunity of hearing was granted before the impugned order was passed. The court held that the hearing granted by CCCE must be meaningful and not a mere formality. The notice calling upon the person to represent their case must indicate the charges and evidence to enable an effective representation. The court found that the CCCE had not provided such an opportunity, thus violating the principles of natural justice. However, due to the specific facts of the case, the court did not grant equitable relief to the petitioner. 4. Entitlement to Utilize CENVAT Credit: The impugned order had restricted the petitioner from utilizing CENVAT credit for paying excise duties from 27.02.2008 to 26.05.2008. The court noted that the High Court had granted an ad interim stay on this restriction on 03.04.2008. Given the circumstances, the court decided that the restriction would stand revived from 12.07.2008 and continue for the remainder of the period after deducting the duration of the stay. 5. Provision of Seized Documents and Statements: The petitioner requested copies of all seized documents and statements signed by him and Shri Ganesh Dutt Joshi. The court did not specifically address this issue in the judgment, focusing instead on the broader legal and procedural challenges raised by the petitioner. Conclusion: The petition was rejected, and the notice was discharged without any order as to costs. The ad interim stay of the restriction on utilizing CENVAT credit was vacated, and the restriction was set to resume for the remaining period. The court emphasized the need for proper procedural compliance and meaningful opportunities for representation in such cases.
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