9911796707
TMI Blog2024 (7) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... duty by utilizing the credit for the month of April 2006 and thereafter, having surrendered the licence cannot go back to manufacture and avail the benefit of Nil rate of duty for the remaining months of the same financial year. Therefore, the benefit of the Notification No.8/2003-C.E. dated 01.03.2003 cannot be extended to the appellant for the remaining period of the financial year i.e. May 2006 to March 2007. Time Limitation - HELD THAT:- In the instant case, all the material facts were before the authorities before issuance of the first notice but they choose to issue for only one of the paras and the second notice was issued on the same audit note which was available to them at the time of the first notice and therefore as rightly observed by the Hon ble High Court of the Madras in the case of M/S. ANGLO FRENCH TEXTILES VERSUS THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CENTRAL EXCISE [ 2018 (8) TMI 1396 - MADRAS HIGH COURT] and various other decisions relied upon by the appellant, there are no merit in the second show-cause notice invoking suppression in as much as the notice was issued based on the common audit note and all the relevant facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbai: 2005 (182) ELT 170 (Tri.-Mumbai) Ankit Packaging Ltd. vs. Commissioner of Central Excise, Hyderabad: 2004 (165) ELT 228 (Tri.-LB) 3.1 He also argued on limitation stating that the appellant had surrendered registration on 08.05.2006 and audit was conducted on 20.03.2007 and based on the audit observations, notice was issued on 04.11.2008, which was adjudicated vide Order-in-Original No. 19.08.2009. The second Show-cause notice dated 22.09.2009 based on the same audit note cannot invoke suppression or mis-declaration and hence, the notice is devoid of merits. The counsel relied on the following decisions to substantiate his arguments on limitation. P B Pharmaceuticals (P) Ltd. vs. Collector of Central Excise: 2003 (3) SCC 599 ECE Industries Ltd. vs. Commissioner of Central Excise, New Delhi: 2004 (164) ELT 236 M/s. Anand Nishikawa Co. Ltd. vs. Commissioner of Central Excise, Meerut: 2005 (188) ELT 149 (SC) Uniflex Cables Ltd. Vs. Commissioner of Central Excise, Surat-II: 2011 (271) ELT 161 (SC) 4. The Revenue on the other hand reiterating the findings of the Authorities below submitted that the appellant could not have availed duty payment as well as exemption under the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount calculated at the rate specified in the corresponding entry in column (3) of the said Table: Provided that nothing contained in this notification shall apply to a manufacturer who has availed the exemption under notification No. 39/2001-Central Excise, dated the 31st July, 2001, published in the Gazette of India vide number G.S.R. 565 (E), dated the 31st July, 2001, in the same financial year. 2. The exemption contained in this notification shall apply subject to the following conditions, namely: - (i) a manufacturer has the option not to avail the exemption contained in this notification and instead pay the normal rate of duty on the goods cleared by him. Such option shall be exercised before effecting his first clearances at the normal rate of duty. Such option shall not be withdrawn during the remaining part of the financial year; (ii) while exercising the option under condition (i), the manufacturer shall inform in writing to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise with a copy to the Superintendent of Central Excise giving the following particulars, namely: (a) name and address of the manufacturer; (b) location/locations o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been examined by the Commissioner (Appeals). Therefore, after holding that the appellants are entitled for the benefit of Notification 9/2001, we remand the issue to the Commissioner (Appeals) for examining the unjust enrichment aspect. He may give an opportunity to the appellants to produce all evidences in respect of their claim that the same is not hit by bar of unjust enrichment. Thereafter, he may pass an order in accordance with law. Thus, the appeal is disposed of by way of remand in the above terms. 5.1 The decisions relied upon by the appellant are not relevant as the facts of those cases are entirely different. Moreover, in this case, the appellant in order to exhaust the credit available with them paid duty by utilizing the credit for the month of April 2006 and thereafter, having surrendered the licence cannot go back to manufacture and avail the benefit of Nil rate of duty for the remaining months of the same financial year. Therefore, the benefit of the Notification No.8/2003-C.E. dated 01.03.2003 cannot be extended to the appellant for the remaining period of the financial year i.e. May 2006 to March 2007. 5.2 Now coming to the question of limitation, it is to be not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another show-cause notice invoking extended period as is held in large number of cases decided by the Supreme Court. This issue has not been addressed either by the original authority nor the Commissioner (Appeals) in the impugned order. The Apex Court in the case of Anglo-French Textiles Vs. CESTAT, Chennai 2018 (362) E.L.T. 576 (Mad.) dated 16.08.2008 in similar set of facts observed that: 12. The assessee submitted their reply dated 28-5-2002 to the second show cause notice dated 27-3-2002. The preliminary objections taken by the assessee were that there could not be two show cause notices on the same cause of action and that it was against the principles of natural justice. Apart from that, an elaborate reply was given on the factual matrix. 13-19. 20. What is important to note is the statement of facts appended to the first show cause notice dated 14-8-2001, which, in other words, is the basis for issuance of the first show cause notice. Therefore, we are essentially required to look into the question as to what was the basis for issuance of the first show cause notice and what weighed in the mind of the Assistant Commissioner prior to issuance of the first show cause notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. In the instant case, the Officer, who proposed to initiate the proceedings against the assessee, had full and complete material before him and in his opinion, he thought fit to issue the first show cause notice proposing confiscation and impose penalty and ultimately, dropped the proposal and imposed only a fine of Rs. 10,000/- for not proper maintenance of the records. Therefore, the second Order-in-Original, which was impugned before the Tribunal, is, in fact, an order reviewing the earlier decision, which is impermissible under the provisions of the Act. 32. Thus, for all the above reasons, we are of the clear view that the Commissioner of Central Excise and the Tribunal fell in error in coming to the conclusion that the second show cause notice initiated was entirely different and not relatable to the first proceedings initiated vide show cause notice dated 14-8-2001 5.4 In the instant case, all the material facts were before the authorities before issuance of the first notice but they choose to issue for only one of the paras and the second notice was issued on the same audit note which was available to them at the time of the first notice and therefore as rightly observe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
