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TMI Blog2004 (10) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in the case of M/s. Alcobex Metals (P) Ltd. reported in 1992 (58) E.L.T. 108 (Tribunal) wherein it was held that as a consequence of the show cause notice being held to be without jurisdiction for the purposes of demand of duty, having been issued by an officer other than the Commissioner, under the proviso to Section 11A, the entire proceedings for other purposes of imposition of penalty and confiscation would also be without jurisdiction. The referral Bench was of the view that a combined notice having been issued under two different provisions of law for recovery of duty under Section 11A of the Central Excise Act, 1944 and for confiscation and levy of penalty under Section 124 of the Customs Act, 1962 read with Section 12 of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent the provisions of this sub-section shall have effect, as if, for the words "Central Excise Officer" the words "Collector of Central Excise" and for the words "six months" the words "five years" were substituted."(emphasis supplied) It is seen that the proviso to Section 11A requires show cause notice to be issued by the Commissioner where the contravention of provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n agreement with the observations of the Bench referring the matter to the Larger Bench that the order recorded in the case of Alcobex Metals (P) Ltd. is a cryptic order. After having gone through the said decision in the case of Alcobex Metals we find that the view of five members of the Tribunal are available and it was, by majority, held that the show cause notice cannot be segregated into portions for the purposes of demand of duty and for imposition of penalty and confiscation proceedings. It was held that once a show cause notice has been held without jurisdiction for the purposes of demand of duty the same would be invalid in its totality. Against the said order of the Tribunal appeal was filed by the Revenue before the Hon'ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court, cannot be doubted now by this Tribunal inasmuch as by applying 'Doctrine of merger' no issue remains open for further decision. We are fully in agreement with the above contention of the appellants that the Tribunal's decision stands merged with the Hon'ble Supreme Court decision and all the issues decided by the Tribunal, though not independently examined by the Hon'ble Supreme Court, attained the status of having been finally decided. As such we are of the view that the Alcobex decision having been confirmed by the Apex Court settles the law on the disputed issue. We also refer to the Larger Bench decision in the case of Transcab International reported in 2003 (157) E.L.T. 149 (Tri. - Larger Bench) wherein it was observed that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds and imposition of penalty is issued and notice relating to proposal for demand of differential duty is held to be without jurisdiction, the action for confiscation and penalty cannot survive. The Hon'ble Supreme Court in the case of(b) CCE v. H.M.M. Ltd. reported in 1995 (76) E.L.T. 497 (S.C.) clarified that the question of penalty would arise when the department is able to sustain its demand under notice. The said decision of the Hon'ble Supreme Court was taken note by this Tribunal in the case of Eveready Industries India Ltd. reported in 2001 (138) E.L.T. 1287 (Tri.) wherein originally there was difference between two members and the matter was referred to the third member. By majority, it was held that when the demand of duty is dro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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