9911796707
TMI Blog2015 (10) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have been powerless under the article 226 of the Constitution of India to entertain a petition challenging the show cause notice, which is exfacie illegal. Show cause notice is issued on the premise that the Petitioners were not entitled for obtaining cenvat credit amounting to ₹ 20,78,77,048/. In effect the showcause notice proceeds on the premise that the cenvat credit sought to be credited by the petitioner prior to the date of registration was inadmissible in law. The showcause notice therefore demands as to why the said amount should not be recovered from the Petitioner and as to why interest and penalty should not be levied. Perusal of Section 32 M would reveal that the very order of settlement passed under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 Petitioner on 9/11/2012. The learned Senior Counsel for the Petitioner submits that the said show cause notice was issued on the premise that though the activities of the Petitioner could not strictly come within the ambit of definition of word manufacturing by deeming provision. It was included in the term manufacture . He submits that the Petitioner did not dispute with regard to the said position and went before the Settlement Commission. He submits that an issue before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 show cause notice. In ordinary course,the parties could have been directed to file reply to show cause notice and adjudicating authority could have been permitted to take decision in accordance with law. However, it is noticed that the show cause notice expressed in contravention of the statutory provision, this Court could not have been powerless under the article 226 of the Constitution of India to entertain a petition challenging the show cause notice, which is ex facie illegal. 5 It will be relevant to refer to Section 32 M of the said Act which reads thus : 32M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner 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 of Karnataka High Court and also judgments of the learned settlement commissioner itself. It is relevant to mention paragraph 19.1 of the Judgment and order passed by the learned Settlement Commission dated 17/12/2013 which reads thus : 19.1 The Bench observed that Revenue has sought to argue that the applicant is not entitled to utuilize cenvat credit of the Additional Duty and Special Duty paid on auto parts at the time of import. This is because the applicant was not registered with Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng further remains to be paid on this Count. 9 Perusal of the impugned show cause notice and particularly paragraphs 8 and 14 would reveal that the show cause notice is issued on the premise that the Petitioners were not entitled for obtaining cenvat credit amounting to ₹ 20,78,77,048/ . In effect the show cause notice proceeds on the premise that the cenvat credit sought to be credited by the petitioner prior to the date of registration was inadmissible in law. The show cause notice therefore demands as to why the said amount should not be recovered from the Petitioner and as to why interest and penalty should not be levied. Perusal of Section 32 M would reveal that the very order of settlement passed under Section 5 of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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