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TMI Blog2015 (10) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... not be demanded and recovered from them under the provisions of Section 11A(5) of Central Excise Act, 1944 read with Rule 14 of the Cenvat Credit Rules, 2004; so also as to why an interest at appropriate rate should not be charged from them on the amount of Cenvat Credit under the provisions of Section 11 AA of Central Excise Act, 1944 read with Section 11A(15) and Rule 15 of the Cenvat Credit Rules, 2004; and also as to why penalty should not be recovered from them under Section 11 AC (1)(b) of Central Excise Act, 1944 read with Rule 15 of the Cenvat Credit Rules, 2004. 2 Shri N. Venkatraman, learned senior Counsel appearing on behalf of the Petitioner submits that for the said period earlier show cause notice was issued to the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, submits that the impugned showcause notice which seeks to reopen the same issue is not permissible in view of Section 32 M of the said Act. 3 Shri Rao,learned Counsel for the respondents submits that the Petitioner has approached this Court at a premature stage. He submits that the petition is only challenging the show cause notice. He further submits that the show cause notice which was the subject matter of the learned Settlement Commission is different. He therefore submits that Writ Petition be dismissed in limini. 4 No doubt that this Court would not have ordinarily entertained the petition which challenges the showcause notice. In ordinary course,the parties could have been directed to file reply to show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue on which the petitioner was called upon to show cause in the said notice was regarding nonpayment of central excise duty prior to the period of registration which in the opinion of the department amounted to contravention of the Central Excise Act and Rules thereunder. Perusal of paragraph 20 and 21 of the impugned showcause notice makes it clear that the issue was with regard to the nonpayment of duty prior to registration. The material on record further reveals that the petitioner accepting that it was liable to payment of duty, had approached the learned Settlement Commissioner only with a contention that even prior to registration, it was entitled to avail Cenvat Credit. 7 The Petitioner had relied on the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case should be allowed." 8 It would also be relevant to refer to operative part of the order passed by the learned Tribunal as could be seen in paragraph20. In so far as payment of duty is concerned, the learned Settlement Commission has ordered thus : "Duty: The Central Duty in this case is settled at Rs. 19,99,33,727/ against the applicant. An amount of Rs. 19,99,33,727/ deposited by the applicant is ordered to be appropriated towards the settled amount of duty. Nothing further remains to be paid on this Count." 9 Perusal of the impugned showcause notice and particularly paragraphs 8 and 14 would reveal that the show cause notice is issued on the premise that the Petitioners were not enti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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