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TMI Blog2023 (7) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... ore proceeding against the assessee for recovery of differential duty in respect of past consignments. The department is directed to refund the duty collected from the assessee in respect of past consignments as the same has been collected illegally without issuing a SCN. However, it appears that Tribunal has also remanded the matter in order to enable the Commissioner to afford opportunities to the parties to keep up with the principles of natural justice - there is no explicit or express direction to issue a SCN. The department has issued the SCN, by interpreting the remand as a direction to issue SCN. The genesis of a litigation is the issuance of show cause notice. The intention of such show cause notice is to inform the party abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rudra Pratap Singh, Additional Commissioner (A.R) For the Department ORDER ORDER : Per Ms. SULEKHA BEEVI, C.S. Both the above appeals arise out of the same impugned order passed by the Commissioner (Appeals) who though confirmed the duty demand, however set aside the order of confiscation of goods and the penalties imposed. The parties herein are referred to as the assessee and department for the sake of convenience. 2. Brief facts are that the assssee filed Bill of Entry dated 07.04.2008 and 15.04.2008 seeking clearance of goods by declaring it as Non Alloy Steel Wire Rod . The goods were imported from M/s.Silvery Dragon PC Steel Products Group Co. Ltd., China and M/s.Wire and Wire Products, Malaysia respectively. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r two Bills of Entry dt. 07.4.2018 15.4.2018. The Tribunal however, remanded the matter to the adjudicating authority with the observation that the waiver of show cause notice sought by the party was only for the two live Bills of Entry and not for the past consignments. It was stated therein that it was incumbent upon the department to issue show cause notice in regard to demand of differential duty for the past consignments covered by 5 Bills of Entry. 3. Accordingly, show cause notice dt. 06.11.2009 was issued to the assessee proposing to classify the goods under CTH 73121090 as well as to demand differential duty on the past consignments vide five Bills of Entry. After due process of law, the original authority vide order dt. 26.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order and submitted that the department had issued a show cause notice dt. 06.11.2009 pursuant to the remand order of the Tribunal. The Commissioner (Appeals) has observed that there are no grounds for invoking the extended period and therefore the goods cannot be confiscated under Section 111 (m). It is argued by the Ld. AR that when the SCN has been issued as per the direction of the final order of the Tribunal the relevant date for computing the period of limitation (six months) for issuance of the SCN would be the date of passing of the final order by CESTAT which is 25.09.2008. The SCN issued on 06.11.2009 would then be within time. It is also argued that the observation made by the Commissioner (Appeals) that there are no gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as there is no provision for issuing a SCN after consideration of the appeal. The demand confirmed after issuance of such SCN cannot be justified in any manner. It is prayed that the assessee s appeal may be allowed and Department appeal may be dismissed. 7. Heard both sides. 8. The appeal before us poses an interesting situation wherein the SCN in respect of past consignments have been issued after the appellate stage of the litigation. In the Final Order dt. 25.09.2008 passed by the Tribunal in the earlier round of litigation it has been categorically held by the Tribunal that department ought to have issued a SCN to the assessee before proceeding against the assessee for recovery of differential duty in respect of past consignments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same has been collected illegally without issuing a SCN. However, it appears that Tribunal has also remanded the matter in order to enable the Commissioner to afford opportunities to the parties to keep up with the principles of natural justice. We have to say that there is no explicit or express direction to issue a SCN. The department has issued the SCN, by interpreting the remand as a direction to issue SCN. In our view, the genesis of a litigation is the issuance of show cause notice. The intention of such show cause notice is to inform the party about the allegations and also to give opportunity to the party to put forward any defence with regard to the allegations. The said requirement is the basic principle of natural justice. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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