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TMI Blog1992 (2) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... o the notice of the assessee the further material which had come to the hands of the Department. The issue of this notice is only intended to bring the material in the hands of the Department to the notice of the assessee and give him an opportunity to rebut the same. This cannot deprive the Department of its jurisdiction to proceed to make an enquiry under the notice of 2-12-1988 validly issued by it and pass appropriate orders. Allow this appeal, set aside the order of the High Court and restore the proceedings before the Collector of Central Excise. The proceedings will continue in pursuance of the notices dated 2-12-1988 and 7-3-1990 in accordance with law. - 859 (NM) of 1992 - - - Dated:- 18-2-1992 - S. Ranganathan, V. Ramaswami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent had not met the assessee's objections that the notice was time barred. According to the High Court, it was the duty of the Department to first decide the objections before proceeding further in the matter. The writ petition was, therefore, allowed. The notices dated 2-12-1988 and 7-3-1990 were quashed as being vague and indefinite. However, the High Court added that "the Union of India would be at liberty to issue fresh notices by disclosing to the petitioners as to how the impugned show cause notices issued to them were within jurisdiction being within the period of limitation and on what basis or material the said notices were based." 5.The learned Additional Solicitor General has invited our attention to the show cause notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction removed clandestinely by the assessee. 6.Having gone through the details, briefly set out above, there can be no doubt that the notice issued was clearly one on the basis of which a notice could be issued within the extended period of limitation under the proviso to Section 11A of the Central Excise Act was applicable. In our opinion, the High Court was also in error in thinking that there should be a preliminary enquiry and a preliminary decision to establish that show cause notice had been issued within the period of limitation. We fail to see how in a case of this type and with the material referred to in the notice it could be said that the action taken under Section 11A was without any material. In our opinion, the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and on the scrutiny of material before him. This was not one of the objections taken in the reply to the show cause notice. That apart, even the allegation made in this respect in the writ petition was very vague and indefinite. The contention is also without force considering the detailed narration of facts set out in this notice on the basis of which action has been taken. We also doubt whether, under the Central Excise Act (the language of which is different from the corresponding provisions of the Income Tax Act or Sales Tax Act), the decisions under those enactments to the effect that the officer issuing the notice should come to an objective conclusion on his own and should not be guided by instructions, orders or directions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the hands of the Department. The issue of this notice is only intended to bring the material in the hands of the Department to the notice of the assessee and give him an opportunity to rebut the same. This cannot deprive the Department of its jurisdiction to proceed to make an enquiry under the notice of 2-12-1988 validly issued by it and pass appropriate orders. 11.For the reasons mentioned above we allow this appeal, set aside the order of the High Court and restore the proceedings before the Collector of Central Excise. The proceedings will continue in pursuance of the notices dated 2-12-1988 and 7-3-1990 in accordance with law. It will be open to the assessee to raise before the authorities all the contentions that are available to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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