2024 (2) TMI 77 - HC - Central Excise

Recovery of dues - petitioner has contended that infact after such long lapse of time, having not succeeded in the revision, the recovery as intended by the show cause notice itself had become infructuous - HELD THAT - There are substance in the contention as urged on behalf of the petitioner that the show cause notice was itself in the nature of a protective show cause notice and more particularly, considering the grounds as set out in the show cause notice in paragraphs 7 and 8. Certainly there was no cause for the department to proceed to adjudicate the show cause notice. The contention of the petitioner is quite correct that the show cause notice has become infructuous in view of the order passed by the Revisionary Authority. Petition allowed.

Summary

Issues involved:
The issues involved in the judgment are the validity of a show cause notice issued by the Additional Commissioner of Central Excise and the subsequent proceedings u/s Article 226 of the Constitution of India.

Validity of Show Cause Notice:
The petitioner filed rebate claims under Rule 18 of the Central Excise Rules, 2002, which were initially rejected by the Assistant Commissioner of Central Excise. The Commissioner (Appeals) later allowed the rebate claims, a decision upheld by the Revisionary Authority. Despite this, the Additional Commissioner of Central Excise issued a show cause notice in December 2011, which the petitioner argued had become infructuous due to the finality of the orders passed by the Revisionary Authority. The court agreed with the petitioner, finding that the show cause notice was in the nature of a protective notice and had no basis for adjudication given the finality of previous decisions.

Subsequent Proceedings u/s Article 226:
The court heard arguments from both parties, with the respondents not disputing that the orders of the Revisionary Authority confirming the orders of the Commissioner (Appeals) had attained finality. After considering the facts and contentions, the court found merit in the petitioner's argument that the show cause notice had become infructuous and should not be adjudicated upon. Consequently, the court allowed the petition in favor of the petitioner, granting the requested reliefs under prayer clauses (a) and (b) without costs.