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2014 (11) TMI 534 - HC - Central ExciseChallenge to the Show Cause Notice - Maintainability of Writ Petition - exemption in respect of petroleum gases and other gaseous hydrocarbons falling under Chapter Heading No.27.11 - Exemption Notification No.157/89-C.E. dated 17.07.1989 - Held that:- The impugned show cause notice actually has the effect of destroying the very exemption notification. A careful look at the ad hoc exemption order bearing No.23/3-95-CX dated 24.03.1995 issued by the Under Secretary to the Government of India, Ministry of Finance, Department of Revenue would show that the Government itself was aware of the supply by the 5th Respondent of Polyisobutylene enriched LPG to the petitioner through the pipeline. The petitioner extracts Polyisobutylene and returns the remnant after subjecting it to a process. The exemption Notification as originally issued on 17.07.1989, was actually rescinded by another Notification dated 01.03.1994, when Modvat was extended to petroleum products including LPG. Therefore, when companies like the petitioner made representations, the Government of India decided to restore the exemption by issuing a Notification No.116/94-CE dated 24.06.1994. But during the period from the date of withdrawal of exemption (1.3.1994) and the date of restoration of exemption (23.06.1994), the petitioner was made to pay the full incidence of Excise Duty. Therefore, the Government of India passed an order dated 24.03.1995, directing refund of the Duty paid during the said period. It is clear that the Government of India was fully aware of the nature of the exemption Notification, the nature of the manufacturing process carried on by the petitioner and the entitlement of the petitioner to the benefit. Being an authority functioning under the Government of India, the second Respondent is bound by the exemption Notification as well as the decision taken by the Government of India way back in 1995. Impugned show cause notice is nothing but an attempt to unsettle what was settled for nearly 24 years. What was settled for 24 years was not merely at the level of the Commissioner of Central Excise but at the level of the Government of India as seen from the ad hoc Notification issued in 1995 directing refund. Therefore, the impugned show cause notice is wholly without jurisdiction and nothing but an abuse of the process of law. - Decided in favour of assessee.
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