9911796707
TMI Blog1994 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 31-12-1992 issued by the respondent and also the further notices issued for hearing. 2.Before proceeding to consider the case, it may be necessary to refer to the developments that have taken place after the first show-cause notice dated 25-9-1990 was issued for provisional assessment. The correctness of the said show cause notice was considered by the Collector of Central Excise, Madras, in his order dated 25-2-1991. It was held by the Collector that Section 11A of the Central Excises and Salt Act, 1944, will not be relevant at the stage of provisional assessment as it pertains to escaped assessment which would arise only after the final assessment. He has also further held as follows :- "In view of the fact that cosmetics ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 30-12-1991 was issued. At the same time, the Department went up in appeal against the aforesaid order of the Collector of Central Excise before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (For short, CEGAT). The appeal was filed at the instance of the Board. In the appeal (E/Appeal No. 2344/92-A), the CEGAT held as follows : "The view expressed by the Bombay High Court has also been endorsed by the Supreme Court while disposing of the SLP against that decision wherein the Supreme Court has observed, "The material contained in the impugned notice could be used as independent material to support the final assessment, ofcourse, after affording an opportunity to the respondents to meet the case . . .. This, the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector which has been confirmed by the CEGAT, inasmuch as the assessment of all the units of the petitioner/appellant has to be taken up together and Section 11A is to be deleted from the show-cause notice; that assessment of all units to be made by one authority in order to avoid inconsistencies; that before the final assessment is made it is necessary to settle the price list and that the observations made in the opening para of the order of the learned single Judge are not warranted. 3.From the operative portions of the orders passed by the Collector and the CEGAT, which are extracted above, it is clear that the Adjudicating Authority is required to take up the final assessment of all the units of the petitioner/appellant together. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Thus one of the main contentions of the petitioner/appellant does not survive. 4.As far as the inclusion of Section 11A in the notices is concerned, the order of the Collector as well as the Central Board of Excise and Customs, has made it clear that Section 11A is not available and that proposition is supported by a decision of the Supreme Court as noticed by the CEGAT. Learned single Judge has stated that the application of section 11A of the Act would arise only after finalisation of the assessment. If that be so, the inclusion of section 11A in the show-cause notices become inappropriate as the present show cause notices are for final assessment. After the final assessment is made section 11A can be invoked only under the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner in which the parties are dragging the proceedings from the date of a show cause notice dated 30-12-1991. I am inclined to say so much as a preface to my order, because of the untenable and inconsistent stands taken by the assessee at different stages." We are of the view that in the facts and circumstances of the case, these observations are not warranted because, at every stage of the proceeding, the stand of the petitioner/appellant has been accepted by the concerned authorities. Therefore, it cannot be characterised that the petitioner/appellant is only interested in dragging on the proceedings in order to postpone the payment of duty. Hence, we are of the opinion, that those observations are to be deleted. 7.For the reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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