1988 (5) TMI 38 - SC - Central Excise

Whether notice to show cause dated 9/l0th February 1984 should be treated as a valid and effective notice in respect of the period from 15th August 1983 to 6th February 1984 as well as the period from 7th February 1984 onwards ? Held that - the notice set out as an established fact that the classification lists submitted by the petitioners had been modified by the Assistant Collector Central Excise Ujjain and the only matter with respect to which the petitioners were asked to show cause was with regard to the quantification of the amount of the short-levy and consequently the amount which was liable to be recovered from the petitioner No. 1. This notice therefore cannot be regarded as a show cause notice against the modification of the classification lists in respect of the aforesaid period. Of these circumstances the show cause notice is bad in law and of no legal effect as far as the said earlier period is concerned. The result is that the said show cause notice must be struck down in so far as period upto 6th February 1984 is concerned and can be regarded as a proper show cause notice only in respect of the subsequent period from 7th February 1984 onwards. We are therefore of the view that under the said show cause notice the question of short-levy or non-levy of excise duty prior to 6th February 1984 cannot be gone into by the Collector and the High Court was right in the view which it took. Appeal dismissed.

Summary

Issues Involved:
1. Validity of the notice of demand dated 7th February 1984.
2. Proper issuance of a show cause notice under Section 11A of the Central Excises and Salt Act, 1944.
3. Legality of the modification of the classification lists by the Assistant Collector of Central Excise.
4. Jurisdiction of the Collector of Central Excise to decide on short-levy or non-levy for the period from 15th August 1983 to 6th February 1984.

Detailed Analysis:

1. Validity of the Notice of Demand Dated 7th February 1984:
The Supreme Court found that the notice of demand issued on 7th February 1984 was in violation of Section 11A of the Central Excises and Salt Act, 1944, as no prior show cause notice was served to the petitioners. The court emphasized that "before any demand is made on any person chargeable in respect of non-levy or short-levy or under payment of duty, a notice requiring him to show cause why he should not pay the amounts specified in the notice must be served on him." Since this procedure was not followed, the demand notice was deemed "bad in law." The court rejected the appellant's argument that a post facto show cause notice could be considered adequate.

2. Proper Issuance of a Show Cause Notice Under Section 11A:
The court reiterated the necessity of issuing a show cause notice before making any demand under Section 11A. It referred to the case of Gokak Patel Vokkart Ltd. v. Collector of Central Excise, Belgaum, where it was held that "an opportunity to be heard is intended to be afforded to the person who is likely to be prejudiced when the order is made before making the order." The statutory scheme under Section 11A(1) and (2) necessitates a prior show cause notice and consideration of the representation made in response to it.

3. Legality of the Modification of the Classification Lists by the Assistant Collector of Central Excise:
The court noted that the Assistant Collector had modified the approval of the classification lists without giving the petitioners an opportunity to be heard. The High Court had already quashed these modifications, and the Supreme Court upheld this decision, stating that the modification orders served on the petitioners were "bad in law."

4. Jurisdiction of the Collector of Central Excise to Decide on Short-Levy or Non-Levy for the Period from 15th August 1983 to 6th February 1984:
The court agreed with the High Court's decision that the show cause notice issued on 10th February 1984 could only be treated as valid for the period from 7th February 1984 onwards. The court observed that the notice primarily focused on the quantification of the short-levy amount rather than addressing the modification of the classification lists. The court concluded that "under the said show cause notice the question of short-levy or non-levy of excise duty prior to 6th February 1984 cannot be gone into by the Collector." Therefore, the High Court was correct in limiting the scope of the show cause notice to the period from 7th February 1984 onwards.

Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's judgment that quashed the demand notice dated 7th February 1984 and the modification orders of the classification lists. The show cause notice issued on 10th February 1984 was deemed valid only for the period from 7th February 1984 onwards. The appeal was dismissed with costs.