TMI Blog2008 (8) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... both sides. 4. The brief facts are as follows : 4.1 The appellant took over M/s. Balaji Iron and Steel in April, 1994. A classification list was filed on 4-4-1994. Subsequently, another classification was filed which is dated 28-6-1994 claiming concessional rate of duty under Notification 1/93-C.E. dated 28-2-1993. The Assistant Commissioner in his Order-in-Original No. 35/1994 dated 15-7-1994 rejected the exemption claimed in the classification list dated 28-6-1994 on the ground that the value of all excisable goods cleared from the factory by M/s. Balaji Iron and Steel during the year 1993-94 was Rs. 5,10,55,514/-. The appellants filed Writ Petition No. 1361/1994 before the Hon ble High Court of Andhra Pradesh set aside the O-I-O dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of Rs. 6.25 lakhs and interest without following the due process of law i.e., without issue of show cause notice, is not legally tenable. 5. The lower authority rejected the refund claim on the ground that consequent to the decision of the Hon ble High Court on 5-7-2004, the appellant is liable to pay the duty involved. The appellants aggrieved over the said order approached the Commissioner (Appeals). The Commissioner (Appeals) upheld the order of the lower authority rejecting the refund claim. Hence, the appellants have come before this Tribunal. 6. The main contention of the appellant is that no show cause notice was issued for demanding the duty. They cited case-laws to urge that before raising the demand it was mandatory to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n put on notice as regards the amount of duty to be payable by them consequent on the dismissal of the Hon ble High Court's order. It is also recorded that the department promptly retuned the bank guarantee to the assessee, when the High Court s order dated 8-9-94 was in their favour. Hence, it is logical and lawful that the appellant should pay back the amount when the High Court s order dated 8-9-94 was set aside by the Supreme Court vide its order dated 13-11-2002 without waiting for any show cause notice. It is also recorded that there is no dispute regarding the duty liability. He has stated that the case-laws cited by the appellant are not relevant. The learned Consultant relied on the following case-laws : (a) Collector of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Malu Sleepers Pvt. Ltd. v. Commissioner of Central Excise, Bangalore [2006 (197) E.L.T. 49 (Tri.-Bang.)] which in turn relied on the above mentioned Supreme Court s case. 8. I have gone through the records of the case carefully. The dispute between the appellant and the Revenue emanates with the issue of Order-in-Original 35/94 dated 15-7-1994. The appellant claimed SSI exemption under Notification 1/93-C.E. dated 28-2-1993 by filing a classification list dated 28-6-1994. The Suptd. of Central Excise visited the unit and reported that the value of clearances of all excisable goods from the factory during the year 1993-94 was Rs. 5,10,55,540/-. This information was very relevant for deciding the classification list. During the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in its decision of 5th July 2004 dismissed the writ petition filed by the appellant for non appearance and non prosecution. The logical conclusion is that the Adjudication Order No. 35/94 stands restored consequent to the dismissal of the writ petition. In that case, the appellant is liable to pay the duty for the clearances in terms of the Adjudication Order No. 35/94. When the differential duty was determined in accordance with the directions of the Hon ble High Court, there was no need for the Revenue to issue any show cause notice demanding the differential duty. 9. Issue of show cause notice is necessary in terms of the principles of Natural Justice. The idea is that a demand should not be thrust on an assessee all on a sudden. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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