2016 (6) TMI 1090 - AT - Central Excise

Recovery proceedings against an invalid show cause notice - Held that - On perusal of the report received from the department, it is a fact that the show cause notice has not been served on the appellants. We have also gone through the adjudication order dated 8.9.94. Initially the adjudication order does not mention that any show cause notice was issued to the appellant. The show cause notice was first time served to the appellant on 27.6.2001. The show cause notice was issued for the period August, 1993 to October, 1993 is time barred in view of proviso to section 11A . Therefore, we hold that in the absence of issuance of show cause notice within reasonable time as prescribed under the Act the proceedings against the appellant are not sustainable. Consequently, the impugned order is set aside and the appeal is allowed in favour of assessee

Summary

Issues involved: Appeal against demand of duty based on classification under specific notifications; Validity of proceedings due to lack of show cause notice within reasonable time.

Analysis:

Issue 1: Classification of goods under specific notifications
The appellant appealed against the demand of duty based on the classification of goods under specific sections of Notification No. 31/93. The Tribunal confirmed the demand against the appellant for the period from August 1993 to October 1993. The issue was settled against the appellant on merits. The order was challenged before the High Court, pending adjudication. This issue primarily revolved around the correct classification of goods under different sections of the notification, leading to the demand of duty.

Issue 2: Validity of proceedings due to lack of show cause notice
The appellant argued that no show cause notice was issued to them, making the proceedings unsustainable under section 11A of the Central Excise Act, 1944. The appellant requested evidence of the service of the show cause notice, and multiple opportunities were granted for the same. The department's report confirmed that the show cause notice was not served on the appellants within a reasonable time. The adjudication order initially did not mention the issuance of any show cause notice to the appellant. The first notice was served on the appellant on 27.6.2001, which was time-barred for the period in question. The Tribunal held that in the absence of a timely issuance of the show cause notice as prescribed under the Act, the proceedings against the appellant were not sustainable. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief.

This judgment highlights the importance of procedural requirements, such as the timely issuance of show cause notices, in maintaining the validity of proceedings in excise matters. It emphasizes the need for adherence to legal provisions to ensure fairness and compliance with the law in such cases.