2017 (10) TMI 115 - AT - Central Excise

Validity of subsequent SCN - the present SCN was issued on 13.01.2006 to the same assessee covering period from 03.08.2001 to 20.11.2002 whereas SCN dated 06.07.2005 also covered the period, covered by present SCN - Held that - it is apparent that the source of information for both the show cause notices is the same - the later SCN i.e. 13.01.2006 was not sustainable since the said SCN dated 13.01.2006 was issued by invocation of proviso to sub Section (1) of Section 11A of CEA, 1944, in view of the ruling by Hon ble Supreme Court in the case of Nizam Sugar Factory 2006 (4) TMI 127 - SUPREME COURT OF INDIA - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Validity of show cause notice dated 13.01.2006 invoking proviso to sub Section (1) of Section 11A of Central Excise Act, 1944.
2. Sustainability of Order-in-Appeal dated 06.02.2009 passed by Commissioner of Central Excise and Service Tax (Appeals), Allahabad.

Analysis:

Issue 1: Validity of show cause notice dated 13.01.2006
The appellant was issued a show cause notice dated 13.01.2006 for demanding Central Excise Duty on Miscellaneous Aluminium Scrap cleared by the appellant. The notice invoked the proviso to sub Section (1) of Section 11A of Central Excise Act, 1944. The appellant challenged this notice citing a previous show cause notice dated 06.07.2005, which also covered the same period. The appellant argued that invoking the proviso for the later notice was not permissible as the source of information for both notices was the same. The Tribunal agreed with the appellant, citing the ruling of the Hon’ble Supreme Court in a similar case. The Tribunal held that the later show cause notice dated 13.01.2006 was not sustainable in law due to the earlier notice covering the same period and subject matter. Consequently, the Tribunal set aside the impugned Order-in-Appeal and the Order-in-Original dated 31.03.2008.

Issue 2: Sustainability of Order-in-Appeal dated 06.02.2009
The Order-in-Appeal dated 06.02.2009 passed by the Commissioner of Central Excise and Service Tax (Appeals), Allahabad, was challenged by the appellant. The Commissioner had upheld the Order-in-Original dated 31.03.2008, confirming the demand for Central Excise Duty. However, the Tribunal found that since the show cause notice dated 13.01.2006 was not sustainable, the Order-in-Appeal based on it could not stand. Therefore, the Tribunal allowed the appeal, setting aside the Order-in-Appeal and the consequential Order-in-Original dated 31.03.2008. The appellant was entitled to consequential relief as per law.

In conclusion, the Tribunal found the show cause notice dated 13.01.2006 to be invalid due to the earlier notice covering the same period and subject matter, leading to the setting aside of the Order-in-Appeal and the Order-in-Original. The appellant succeeded in the appeal based on this legal ground.