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TMI Blog2022 (11) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent in proceeding further with the show-cause notice - The Bench had further held that in order to invoke sub-section 3 of Section 11(A), the Excise Officer should form an opinion and that the respondents have issued a show-cause notice after the order of the learned Single Judge, which is not in terms of Section 11(A)(3) and therefore, the payment of Rs.7.53 Crores made by the appellant cannot be said to be in terms of 11(A)(1)(b) of the Central Excise Act. With these observations, the Bench had allowed the writ appeal and 'set aside' the order of the learned Single Judge. Though the original issuance of the show-cause notice may be in terms of the directions of the writ Court, any further contemplation of proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of Rs.7.53 Crores. By an order, dated 08.11.2013, a learned Single Judge had disposed of the writ petition by issuing certain directions, in the following manner: 7. In the above said circumstances, the only course which is possible for this Court is to issue a direction to the respondents to complete the investigation and to issue show cause notice within a time frame and to issue a direction to the Quasi Judicial Authority to pass final order, after affording opportunity to the petitioner, within a time frame. 8. When this was stated, the learned counsel for the respondents would submit that on or before 30.11.2013, the investigation would be completed and show cause notice would be issued to the petitioner by the Quasi Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order of the learned Single Judge, an intra Court appeal was filed in W.A(MD)No.339 of 2014, in which, a coordinate Bench had held that the respondents will have no authority to receive the payment when no ascertainment of the duties has been made by the Central Excise Officer and therefore, allowed the writ appeal and directed for refund of the sum of Rs.7.53 Crores. The relevant portion of the order reads as follows: 20. In the case on hand, there was nothing except an inspection and verification. It was never the case of the respondents that they found out duty evasion in the course of investigation and that when they were ready to serve a notice under sub-section (5), the appellant made payment in terms of sub-section (6). Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fail to make payment within four weeks from the date of receipt of a copy of this order, the respondents will become liable to pay interest at 6% per annum on the said amount from the date of expiry of the time for payment stipulated herein. 4. In the meantime, after the disposal of the writ petition in W.P(MD)No.2026 of 2013, the respondents had issued a show-cause notice, dated 29.11.2013, on the basis of the directions issued in W.P(MD)No.2026 of 2013, calling upon the appellant to show-cause as to why penalty should not be imposed on them under Rules 25 and 26 of the Central Excise Rules, 2002, for contravention of Rule 11 of Central Excise Rules, 2002 and Rule 9 of the Cenvat Credit Rules, 2004, inasmuch as they have fraudulently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty to give their objections and which they had already given. On this basis, the learned counsel submitted that they may be given opportunity to take further course of action based on the objections given by the appellant Company. 8. Heard Mrs.L.Maithili, learned counsel for the appellant and Mr.R.Nanda Kumar, learned Senior Panel Counsel, assisted by Mrs.S.Ragaventhre, learned Standing Counsel appearing on behalf of the respondent. 9. It is no doubt true that the scope of interference to a show-cause notice by a writ Court exercising its power under Article 226 of the Constitution of India, is very limited, barring few exceptions, like lack of jurisdiction or abuse of process of law, etc. In one such decision in the case of Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. The consequential action on the part of the Commissioner of Central Excise, to issue the show-cause notice on 29.11.2013, could be termed to be in accordance with the directions of the learned Single Judge as stated above. However, the appellant had also challenged the order passed in W.P(MD)No.2026 of 2013 in W.A(MD)No.339 of 2014, which came to be allowed on merits. The reason assigned by the coordinate Bench while allowing the appeal is that the payment of Rs.7.53 Crores made by the appellants either on their own accord or under threat or coercion, will not qualify as a payment made in terms of Section 11(A)(1)(b) of the Central Excise Act. The Bench had further held that in order to invoke sub-section 3 of Section 11(A), the E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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