2017 (8) TMI 893 - AT - Central Excise

Validity of subsequent SCN - invocation of proviso to Sub-section 1 of Section 11A of the CEA, 1944, for subsequent SCN - time limitation - deduction of expenses incurred towards freight for transferring of goods from factory to depots - Held that - the facts were within the knowledge of the Department since 06/09/2004 when the appellant had written to the Department about discontinuation of inclusion of freight element from the assessable value. Further, the said SCN dated 02/09/2005 was issued to the appellant for recovery of Central Excise duty involved in the said component of freight expense incurred - the subsequent SCN i.e. 24/11/2008 could not have been issued by invoking proviso to Sub-section (1) of Section 11A of the CEA, 1944 - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Validity of Show Cause Notice for an extended period invoking proviso to Sub-section (1) of Section 11A of the Central Excise Act, 1944.

Analysis:
The appeal was against Order-in-Appeal No.392-CE/LKO/2010 passed by the Commissioner of Central Excise (Appeals), Lucknow. The appellants were involved in manufacturing Yeast and claimed deduction of expenses for freight based on a Tribunal decision. They received Show Cause Notices for demanding Central Excise duty on freight expenses. The Settlement Commission granted immunity for a specific period, but subsequent notices were issued for a later period. The issue revolved around the sustainability of the Show Cause Notice dated 24/11/2008 for an extended period invoking proviso to Sub-section (1) of Section 11A of the Central Excise Act, 1944.

The appellant argued that subsequent Show Cause Notices based on the same facts were not sustainable, citing a Supreme Court judgment. The Department had knowledge of the facts since 06/09/2004 when the appellant informed about discontinuation of including freight in assessable value. The Tribunal found that the Show Cause Notice dated 24/11/2008 could not be issued invoking the proviso to Sub-section (1) of Section 11A as the facts were already known to the Department. Relying on the Supreme Court ruling in a similar case, the Tribunal held the Show Cause Notice dated 24/11/2008 as unsustainable. Consequently, both the Order-in-Original and Order-in-Appeal were set aside, and the appeal was allowed with the appellant entitled to consequential relief as per law.

This judgment highlights the importance of the sustainability of Show Cause Notices for an extended period under specific legal provisions. The Tribunal's decision was based on the principle that subsequent notices cannot be issued based on the same facts already known to the authorities, as established by relevant case law. The ruling provides clarity on the procedural requirements and limitations regarding the issuance of Show Cause Notices in Central Excise matters, ensuring fairness and adherence to legal standards in such proceedings.