9911796707
TMI Blog2021 (5) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... e-mentholised Oil (DMO), peppermint oil, terpines, etc. falling under Sub-heading 330125 90 of the First Schedule of the Central Excise Tariff Act, 1985 (for short' 1985 Act). Petitioner No.2 is the Managing Director of petitioner No.1. Between 2005-2010, the petitioner purchased raw material for manufacturing final products from suppliers based out in Jammu & Kashimr. During 2008-2010, investigations were carried out by the respondent-department against various units in Uttar Pradesh engaged in the manufacture of Menthol Crystal/Powder/Solution, falling under Chapter Sub-Heading 2906 1100 and De-mentholised Oik (DMO), peppermint oil, terpines, etc. falling under Sub-heading 330125 90 of the 1985 Act. The unit of the petitioner was also investigated. Upon investigation by the officer of Central Excise of Meerut-II, Commissionerate, respondents No.2 and 3 issued show cause notices to the petitioner and its managing director alleging that the petitioner has been availing cenvat credit on inputs, namely, "Menthol/Menthol flakes and Mentholised Oil (DMO), Deterpinated Menthol and like inputs" against fake invoices issued by the J&K and North East based units by showing supply of ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the petitioner(s) submits that present case is squarely covered by a Division Bench Judgment of this Court in case bearing CWP No.11990-2020, titled as "M/s Mentha & Alled Products LTd. through its Authorised representative Satya Narain vs. Commissioner, Central Goods and Service Tax, Chandigarh", decided on 04.12.2020. Learned counsel for the respondents does not dispute the aforesaid fact and has no objection if the instant petition be decided in terms of M/s Mentha case (supra). We have heard learned counsel for the parties and perused the record. Similar issue, as involved in the present petition, has also been answered by this Court vide judgment dated 02.08.2018 rendered in M/s GPI Textiles Limited case (supra), wherein while dealing with all the aforesaid pronouncements relied upon by the petitioner as also the provisions of Act, the following has been observed as under:- "12. Relevant provisions of Section 11A (1), (4) and (11) of the Act are reproduced hereunder:- "Section 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.- (1) Where any duty of excise has not been levied or paid or has been short-levied o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further examined the fact as to whether transfer of proceedings to call book in view of circular dated 14.12.1995 can be said to be a reasonable explanation. The opinion expressed was that the mandate of law cannot be diluted by issuing circular especially when there is no power to issue such directions regarding transfer of cases to call book. Relevant paras 23 and 24 thereof are extracted below:- "23. Insofar as the show cause notice in the instant case is concerned, the same has been issued under section 11A of the Act. Proceedings under section 11A of the Act are adjudicatory proceedings and the authority which decides the same is a quasi-judicial authority. Such proceedings are strictly governed by the statutory provisions. Section 11A of the Act as it stood at the relevant time when the show cause notice came to be issued, provided for issuance of notice within six months from the relevant date in ordinary cases and within five years in case where the extended period of limitation is invoked. Section 11A thereafter has been amended from time to time and in the year 2011, various amendments came to be made in the section including insertion of sub-section (11) which provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The adjudicatory authority is required to decide each case as it comes, unless restrained by an order of a higher forum. This court is of the view that the concept of call book created by the C. B. E. & C., which provides for transferring pending cases to the call book, is contrary to the statutory mandate, namely, that the adjudicating authority is required to determine the duty within the time frame specified by the legislature as far as possible. Moreover, as discussed hereinabove, there is no power vested in the C. B. E. & C. to issue such instructions under any statutory provision, inasmuch as, neither section 37B of the Central Excise Act nor Rule 31 of the rules, envisage issuance of such directions. The concept of call book is, therefore, contrary to the provisions of the Central Excise Act and such instructions are beyond the scope of the authority of the C. B. E. & C. Transferring matters to the call book being contrary to the provisions of law, the explanation put forth by the respondents for the delay in concluding the proceedings pursuant to the show cause notice 3.8.1998 cannot be said to be a plausible explanation for not adjudicating upon the show cause notice wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
