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TMI Blog2008 (9) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of Section 154 of the Finance Act, 2003. I also confirm the demand of duty and interest raised against M/s. New Tobacco Co. Ltd., Badarpurghat vide Show Cause Notice mentioned at Sl. No. 10 of Para 1. 2. The Appellant relying on a Notification No. 32/99-C.E. dated 8-7-1997 claimed exemption from Central Excise duty for the locational advantage of being situated within the Shillong Central Excise Commissionerate jurisdiction. They submitted refund claim in respect of duty paid by them through debits in the P.L.A. Such refunds were sanctioned. However, that was not disbursed in view of objection raised by Department of Industry and Commerce of Government of Assam. The Government of Assam informed the Central Excise Authority that provisional registration certificate issued to the Appellant shall not be the basis to grant them refund before they go into commercial production. Also that Government required the Excise Authority to withhold refund until certain documents were filed before the State Government. Accordingly refund was withheld till the issuance of show cause notice dated 28-8-2001. Some of the parties claiming similar advantage had gone to the Hon ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), by the Central Government shall stand amended and shall be deemed to have been amended in the manner as specified against each of them in column (3) of the Ninth Schedule, on and from the corresponding date specified in column (4) of that schedule retrospectively, and accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, any action taken or anything done or purported to have been taken or done under the said notifications, shall be deemed to be and always to have been, for all purposes, as validly and effectively taken or done as if the notifications as amended by this sub-section had been in force at all material times. (2) For the purposes of sub-section (1), the Central Government shall have and shall be deemed to have the power to amend the notifications referred to in the said sub-section with retrospective effect as if the Central Government had the power to amend the said notifications under sub-section (1) of section 5A of the Central Excise Act read with sub-section (3) of section 3 of the Additional Duti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice issued. Confirmation of demand was accordingly uncalled for. In support of his contention he relied on the judgment in the case of Union of India v. Madhumilan Syntax Pvt. Ltd. - 1988 (35) E.L.T. 349 S.C. (B) The proviso to Section 11A was not invocable for which confirmation of demand was unwarranted. (C) The ground for confirmation of duty, not appearing in the show cause notice, subsequent confirmation of demand on the basis of provision of Section 154 of the Finance Act, 2003 was travelling beyond show cause notice. (D) The Order of adjudication was passed on 31-10-2007 in respect of show cause notices issued on 28-8-2001 and 10-9-2001 proposing recovery of the duty not paid for three fortnights and recovery of refund respectively. Such delayed adjudication was bad. (E) Interest was not leviable. (F) Demand of Rs. 2,15,48,160/- (Rupees Two Crore Fifteen Lakhs Forty Eight Thousand One Hundred and Sixty only) having been (sic) interest thereon was leviable under Section 11AB of the Central Excise Act, 1944. 8. Learned Counsel prayed that pre-deposit may be dispensed. 9. Learned Departmental Representative (Jt. CDR) appearing on behalf of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was made beyond the scope of amendment of law. 13. It was categorically held by the Hon ble Supreme Court in para 29 of the Judgment in R.C. Tobacco s case that Parliament cannot be blamed for having at least awaited the decision of the High Court nor can the statutory provision be questioned as being unreasonably retrospective (see : Rama Krishna v. State of Bihar - AIR 1963 SC 1667). It was also held in Para 30 of the Judgment that when the Supreme Court reversed view of High Court the litigant has to bear the burden of duty for the period they had manufactured the excisable goods. It was further held that by enacting Section 154, Parliament has fore-stalled the decision by this Court and in effect taken away the basis for decisions of the High Court. Under the circumstances, it could not be said that financial burden was enforceable or unforceable . Following such principle, mere transfer of the matters from Hon ble High Court of Guwahati as noticed in the Order of Adjudication (at Page 28 of the Paper Book) the Appellants have no scope to argue that they do not have liability as determined by the learned Adjudicating Authority. 14. It was held by the Apex Court in R.C. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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