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TMI Blog1991 (5) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... d notification under separate headings. For the purpose of this application, the following two headings are relevant viz. 11 and 13 of the table to the said notification :- This read as follows: Sl. No. Description Rate Condition 11. Paper board of the following varieties, namely, pulp board, duplex board and triplex board. Ten per cent ad valorem plus one thousand eight hundred and ten rupees per metric tonne. 13. Paper and paper boards other than those specified in S. Nos. 1 to 12. Ten per cent ad valorem plus one thousand and four hundred and thirty rupees per metric tonnes. 3. The petitioner submitted two classification lists in Form-1 dated 21-4-1983 and 6-11-1983 in respect of the said Chromo Board. The petitioner claimed that the said Chromo Board was classifiable under Heading No. 13 of the said notification. The classification lists submitted by the petitioners' were approved provisionally by the respondents on 11-6-1983 and 9-3-1984 respectively. 4. As such the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89,234.04 being the differential duty involved in Duplex Board and the duty involved in the category under Heading No. 13 in terms of the provisions of the Rule 9(2) of the said Rules read with Section 11A of the said Act. The Additional Collector also imposed a penalty of ₹ 50,000/- on the petitioner under Rule 173Q of the said rules having regard to the facts and circumstances of the case . 7. The petitioner preferred an appeal from the order of the Additional Collector before the Customs, Excise, Gold (Control) Appellate Tribunal (CEGAT). The petitioner applied for waiver of pre-deposit. The CEGAT disposed of the application by rejecting the claim for waiver of pre-deposit of the differential duty but stayed realisation of the penalty amount and waived the pre-deposit as far as the penalty amount. The petitioner accordingly deposited the amount of differential duty claim being ₹ 89,234.04. 8. The CEGAT disposed of the appeal filed by the petitioner by an order dated 1-3-1989....... nature of the petitioner's challenge in this writ petition. The said order in so far as it is material reads as follows :- The appeal is with regard to imposition of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Central Excise reported in 1988 (38) E.L.T. 509 (Tribunal). (2) The respondents have relied upon the statements of third parties who were examined behind the back of the petitioners and who were not produced before the petitioners for cross examination. The respondents not having produced the said witnesses for cross examination, the entire proceedings were vitiated. Reliance has been placed on :- (a) Phulbari Tea Estates v. Its Workmen reported in AIR 1959 SC 1111. (b) Kishinchand Chellaram v. Commissioner of Income Tax reported in 125 ITR 713. (3) The proceedings were time barred. There were no circumstances justifying the taking of proceedings after the period of six months as specified under Section 11A. It could not be said that the petitioner was guilty of any fraud or collusion or wilful misstatement or suppression of fact as the petitioner had disclosed all relevant material before the officer concerned. Reliance has been placed on: Collector of Central Excise v. Chemphar Drugs Liniments reported in 1989 (40) E.L.T. 276 (S. Q). (4) It is finally contended that there was no scope for raising the plea of unjust enrichment as the demand had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law raised by the petitioner before the Tribunal viz. that unless the classification was approved finally there would be no question of raising any demand against the petitioner, would go to the root of the matter and would effect the very jurisdiction of the authorities to issue a show cause notice against the petitioner. In other words the point of law raised would affect both the question of penalty as well as the payment of differential duty. There is no reason why the petitioner should have given up the point of law as far as the differential duty was concerned and yet pressed the same only with regard to the question of payment of penalty. 12. It also appears from the order dated 1-3-1989 that the respondents counsel had himself conceded that a demand can be raised only after finalisation of the classification list. Finally the question whether a show cause notice can be issued under Section 11A of the Act before the final assessment is a matter of construction of a statutory provision. It is well established that there can be no estoppel against a statute. 13. The point has in any event again been conceded before the Court by the respondents by making the submission th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s satisfied that an assessee is unable to produce any document or furnish any information necessary for the assessment of duty on any excisable goods; or (b) where the proper officer deems it necessary to subject the excisable goods to any chemical or any other test for the purpose of assessment of duty thereon; or (c) where an assessee has produced all the necessary documents and furnished full information for the assessment of duty, but the proper officer deems it necessary to make further inquiry (including the inquiry to satisfy himself about the due observance of the conditions imposed in respect of the goods after the removal) for assessing the duty. the proper officer may, either on a written request made by the assessee or on his own accord, direct that the duty leviable on such goods shall, pending the production of such documents of furnishing of such information or completion of such test or enquiry, be assessed provisionally as such rate or such value (which may not necessarily be the rate or price declared by the assessee) as maybe indicated by him, if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf of the petitioner (which submission is not disputed by the respondents) that the respondents have not finally approved the classification list with regard to Chromo Board till today. Therefore, the condition precedent to the exercise of power under Section 11A(1) of the Act is absent. For the reasons aforesaid, I must uphold the first contention of petitioner and hold that the show cause notice was issued without jurisdiction. 21. This finding by itself would have been sufficient to dispose of the writ petition. However, as I intend to pass certain directions on the respondents it is necessary to consider the remaining submissions of the petitioner to obviate the possibility of future dispute in this regard. As far as the second contention of the petitioners is concerned, the Supreme Court in the case of Kishanchand Chellaram (Supra) had to consider a situation where the Income Tax Authorities had relied upon a letter by a Bank Manager. The letter was shown by the Income Tax Authorities to the assessee at the hearing before the Tribunal. It was in this connection that the Supreme Court held - It will, therefore, be seen that, even if we assume that this letter was in fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down in the case of Chemphar Drugs Liniments (Supra) are not therefore of relevance in this case. 26. The last submission of the petitioners relates to the petitioners claim for interest on the amount of ₹ 89,234.04 said to have been deposited by the petitioner during the pendency of the petitioners appeal before the Tribunal. The fact that the amount was not realised as such by the respondents is immaterial. The deposit was made because the respondents had demanded the money from the petitioners. Even in cases where the assessee has paid money voluntarily but under a mistake, the Courts have directed refund of the said money so paid to the assessee with interest. The cases relied upon by the petitioner support this view. 27. The last and final question which will have to be determined is whether the petitioners should be relegated to the alternative remedy of preferring an appeal from the decision of the Tribunal under Section 35L of the said Act. This writ application was moved in 1989 and has been entertained by this Court. Having regard to the principles laid down in the decision of the Supreme Court in Hirday Narain v. Income Tax Officer, Bareilly reported i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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