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TMI Blog2006 (8) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 4-10-2000 passed by the Customs, Excise Gold (Control) Appellate Tribunal (hereinafter referred to as "the Tribunal") in Appeal Nos. E/1622/99-A and E/2095/2000-A. Revenue has filed Civil Appeal Nos. 4075-4076 of 2001 against the deletion of duty demand of Rs. 17,67,13,315/- raised in the show cause notice dated 1-10-1986 for the period September 1981 to February 1983 and the assessee has filed Civil Appeal No. 754 of 2001 against the levy of penalty of Rs. One crore. Since these appeals are directed against the common order passed by the Tribunal, we also propose to dispose them of by a common order. The facts are common in both the sets of appeals. 2. This case has a chequered history and has had various round of litigation in different forums. In order to determine the controversy and the point involved in these appeals the following facts may be noticed. 3. M/s. National Tobacco Company Limited, Agarpara, a manufacturer of cigarettes falling under erstwhile Central Excise Tariff Item No. 4-II(2), and holder of Central Excise Licence L-4 No. 3/84 for the manufacture of cigarettes, was merged with M/s. Mirpara Tea Company effective from 1-4-1977. Consequent to this, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby they have short paid Central Excise duty amounting to Rs. 97,55,56,362/-. Accordingly, the assessee was called upon to show cause as to why : "(a) the duty short paid amounting to Rs. 97,55,56,362.00 as per Annexure 'D' should not be demanded under Rule 9(2) of the Central Excise Rules, 1944 read with the proviso of sub-section (1) to Section 11A of the Central Excise and Salt Act, 1944. (b) Penalties should not be imposed on them under Rules 9(2), 52A(5), 210 226 of the Central Excise Rules, 1944." 8. Assessee being aggrieved filed a Civil Writ Petition No. 1708 of 1987 in the Delhi High Court on the ground that the show cause notice dated 1-10-1986 issued to the assessee alleging contravention of the central excise duty in respect of cigarettes manufactured and cleared from the factory at Agarpara during the period September, 1981 to February, 1983 and also addendum to the show cause notice dated 1-10-1986 was in excess of the jurisdiction and/or without authority of law inasmuch as the assessee had been paying the excise duty on the basis of the provisional assessments pursuant to filing of provisional price lists and till the price lists and the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an opportunity to the manufacturer/other parties concerned to meet the case and after considering the show cause; (3) He was further directed to intimate the Collector of .Central Excise, Delhi as soon as he completes the provisional assessment; and (4) The show cause notice dated 1-10-1986 was to be taken up for adjudication thereafter. 11. The assessee being aggrieved filed an appeal before the Appellate Tribunal at New Delhi, which was disposed of on 9-12-1997. The assessee challenged the finding/observation made by the Collector of Central Excise, Delhi that "thereafter this show cause notice will be taken up for adjudication" on the ground that after finalising of the assessment there would be nothing left for the Collector of Central Excise, Delhi for consideration or decision and therefore, this sentence in the order should be set aside. The appeal was disposed of by observing : "....We do not understand the impugned order as recording a finding overruling the contention raised by the appellant the collector had no jurisdiction to adjudicate on the strength of show cause notice dated 1-10-86 or as to whether after finalisation of assessments anything would be left fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Appeals Central Excise, Calcutta recomputed the amount of duty short paid as Rs. 16,6,94,320.34 and Rs. 8,13,683.29 after adjusting Rs. 5.97 crores pre-deposited in the light of the judgment of this Court in Madras Rubber Factory's case (supra). This order was later on corrected by issuing a corrigendum and the amount was reduced. 17. After finalization of the proceedings by the Assistant Collector Central Excise, Kharda Division, Calcutta the Commissioner of Central Excise, Delhi passed an order-in-original in show cause notice dated 1-10-1986 determining Rs. 17.67 crores as due as duty liability and imposing a penalty of Rs. One crore. 18. Assessee being aggrieved filed Appeal No. E/1622/99-A/92E/ 2095/2000-A, which has culminated in the impugned order. Tribunal accepted the appeal partly. Duty liability was set aside as it had already been adjudicated in the earlier proceedings but upheld the levy of penalty. While deleting the duty liability the Tribunal observed thus : "From this, it is clear that the Collector had left the duty demand raised in the show cause notice dated 1-10-1986 also to be included in the finalisation of the provisional assessment which was pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period September, 1981 to February, 1983, the period covered by show cause notice dated 1-10-1986. The show cause notice dated 1-10-1986 was issued against 20 persons including the assessee company. As regards the assessee, for the period September, 1981 to February, 1983, the Commissioner of Central Excise passed the order dated 27-3-1991 directing the Assistant Commissioner to determine the assessable value taking into consideration the materials contained in show cause notice dated 1-10-1986. This he did by noticing the correct position of law laid down by this Court in the case of Union of India v. Godrej Boyce Mfg. Co. (Pvt.) Ltd., (Civil Appeal No. 12824 of 1989 decided on 8-3-90). The Assistant Collector Central Excise, Kharda Division, Calcutta thereafter issued addendum dated 20-2-1992 incorporating the allegations made in show cause notice dated 1-10-1986 in the show-cause notice dated 8-5-1984. The effect of the order passed by the Commissioner of Central Excise, Delhi was that the Assistant Collector Central Excise, Kharda Division, Calcutta alone had the jurisdiction to finally adjudicate and determine the assessable value of the goods cleared from the assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed : "The Kar Vivad Samadhan Scheme certificate along with CBI v. Duncans Agro Industries Ltd. - 1996 (5) SCC 591, and Sushila Rani v. C.I.T. - 2002 (2) SCC 697, judgments clearly absolve the appellants herein from all charges and allegations under any other law once the duty so demanded has been paid and the alleged offence has been compounded. It is also settled law that once a civil case has been compromised and the alleged offence has been compounded, to continue the criminal proceedings thereafter would be an abuse of the judicial process." 26. Thus, after the grant of certificate under the Kar Vivad Samadan Scheme, 1998 as having settled the dispute and payment of the amount determined no further proceedings could be initiated or proceeded with for the period in question. 27. For the reasons stated above, we do not find any substance in the appeals filed by the Revenue. Accordingly, Civil Appeal Nos. 4075-4076 of 2001 are dismissed and the order passed by the Tribunal in this respect is affirmed. 28. Taking up the appeal of the assessee, it may be noted that the proposed penalty was under Rule 9(2) and 52A. This Court in N.B. Sanjana v. Elphinstone Spg. Wvg. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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