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TMI Blog2005 (9) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... 205 /12(4), dated 24-3-2000; (b) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside impugned order No. V.Adj. (SCN) (AEM) 15-28/2000, dated 29-9-2000; (bb) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order declaring the proceedings initiated under Rules 57-I and 57-U in the impugned Show Cause Notice as lapsed in view of substitution thereof by Notification No. 11/2000 CE (NT), dated 1-3-2000; (c) Pending hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by Assistant Commissioner of Central Excise, Division II, Mehsana, (iii) Order of Commissioner (Appeals) dated 15-10-1998; (iv) Order of Assistant Commissioner dated 30-11-1998; (v) Show Cause Notice dated 3-12-1997 / 31-12-1997; (vi) Order of Commissioner dated 31-3-1999; (vii) Five show cause notices and order of demand by Assistant Commissioner dated 26-11-1997; (viii) Order of Commissioner (Appeals) dated 24-6-1999. According to him the issue as to classification of the petitioners' products, the issue as to enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ias as 'P or P Medicines', by inserting word 'Core IV after the Generic name and they classified the products under Chapter Sub-heading No. 3003.10 of the Central Excise Tariff Act, 1985, to facilitate encashment of the accumulated Modvat credit by way of Export of the said product under claim of rebate. It is also noticed that, they had wrongly availed and utilised Modvat Credit Under Rule 57A and 57Q on the said products, whereas these products were correctly classifiable under Chapter Sub-heading No. 3003.20 of the Central Excise Tariff Act, 1985, and which attracted "NIL" rate of duty in the relevant period. Whereas, on the basis of investigation6. conducted, as mentioned in the Statement of Facts, it was noticed that M/s. CHL have Fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was using brand name and was liable to be classified under Tariff Entry No. CSH-3003.10 of the Schedule to the Central Excise Tariff Act, 1985. The said finding was recorded after observing as under : I find substantial force in the"7.1. arguments raised by the appellants that the names like "CORE IV", "CORE Caps" and "CORE Tabs" are the brand names on which they are exporting their goods. It has been held by the Hon'ble Apex Court in the case of Astra Pharmaceuticals (supra) that brand name is one by which the product is identified and asked for. In view of the brand names used on the products by the appellants, the products become PP medicines by virtue of second part of explanation given in Note 2(ii) to Chapter 30 and the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act, 1944, even payment was made by a crossed cheque of same date 30-11-1998 under cheque number mentioned in the order. 10.Similarly in relation to the third issue viz. reversal of Modvat credit for same period of identical amounts, a show cause notice came to be adjudicated by Commissioner of Central Excise vide order dated 31-3-1999 recording that the extended period of limitation was not available. 11.It is not necessary to multiply the reference to different show cause notices and the orders made by the authorities from time to time, suffice it to state that all the issues raised in the impugned show cause notices have come up for consideration before the Adjudicating Authority or the Appellate Authority and concluded in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... averment in the affidavit-in-reply that there is additional material available with the respondent authority on the basis of which it is entitled to issue the impugned notice is not borne out from the facts and evidence on record. 13.In the circumstances, the respondent authority, especially respondent No. 4, has failed to place any material on record to show, even prima facie, that it is entitled to assume jurisdiction for the purpose of issuance of impugned show cause notice for the same period and relating to the same issue which has already been adjudicated upon in past. Once the respondent authority fails to establish jurisdictional facts for assumption of jurisdiction as a natural corollary the impugned show cause notice cannot be al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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