2008 (3) TMI 51 - SC - Central Excise

The entire proceedings initiated by the assessee were after invoking advisory opinion from the Assessing Officer - this aspect has been lost sight of by all the authorities including the Tribunal and the High Court - In this case there is no assessment under the Act - we direct the adjudicating authority to de novo decide the matter in accordance with law

Summary

Issues:
1. Assessment proceedings initiated by the assessee after seeking advisory opinion.
2. Whether the process of corrugation amounts to "manufacture."
3. Withdrawal of writ petition filed under Article 226 of the Constitution.
4. Directions regarding adjudication based on show cause notice during pendency of writ petition.

Analysis:

Issue 1: Assessment proceedings initiated by the assessee after seeking advisory opinion.
In Civil Appeal No. 5945 of 2002, the Supreme Court noted that the assessee had initiated proceedings after seeking an advisory opinion from the Assessing Officer. The Court observed that this crucial aspect had been overlooked by all authorities, including the Tribunal and the High Court. It was emphasized that there was no assessment under the Act in this case. Consequently, the Court decided not to interfere with the impugned judgment, keeping contentions open on whether corrugation constitutes "manufacture."

Issue 2: Whether the process of corrugation amounts to "manufacture."
While refraining from expressing an opinion on the merits of the case, the Supreme Court clarified that the duty amount had been paid by the appellant-assessee. The Court kept contentions open on the question of whether corrugation qualifies as "manufacture," indicating that this issue was not conclusively settled in the judgment.

Issue 3: Withdrawal of writ petition filed under Article 226 of the Constitution.
In Civil Appeal Nos. 106/2003 & 7112/2003, the appellant-assessee had moved the High Court under Article 226 of the Constitution after seeking an advisory opinion from the Commissioner. The Court deemed this action as misconceived and allowed the appellant to withdraw the writ petition. Consequently, with the withdrawal of the writ petition, the Court held that nothing further survived in these civil appeals.

Issue 4: Directions regarding adjudication based on show cause notice during pendency of writ petition.
During the pendency of the writ petition, the Department had issued a show cause notice, leading to adjudication and subsequent appeal to the Tribunal. The Court directed the adjudicating authority to reconsider the matter independently of the judgment of the Punjab and Haryana High Court in Hansa Metallics Ltd. The Tribunal's decision was set aside, and a fresh adjudication was ordered in accordance with the law, ensuring no influence from the previous judgment.

In conclusion, the Supreme Court dismissed the Civil Appeals with no order as to costs, maintaining the integrity of the assessment proceedings, clarifying the payment of duty, addressing the withdrawal of the writ petition, and providing directions for a fresh adjudication process uninfluenced by previous judgments.