TMI Blog2010 (3) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... ut four years, and affidavits having been filed, pursuant to the directions of this Court, this Court is not inclined to reject this writ petition on the sole ground of existence of an alternative remedy, more so when the impugned notice is patently unsustainable in law - The writ petition is disposed of - 3637 of 2007 - - - Dated:- 3-3-2010 - Indira Banerjee, J. [Judgment]. In this writ application, the petitioners have inter alia challenged a show-cause notice No. V(84) 17/Kol-H/2002/731 (A) dated 27th March, 2002 wherein it has been alleged that the petitioner No. 1 had undervalued excisable goods falling under Chapter 72.00, 84.00 and 90.00 of the Central Excise Tariff Act, 1985 by removing a substantial volume of excisable goods from its factory on the pretext of repair and/or servicing, resulting in short payment of duty on spare parts amounting to Rs. 3,20,97,303/- during the period from April, 1986 to February, 2002 as detailed in Annexure A to the said notice. 2. The petitioner No. 1 manufactures inter alia weighing machines, scales, weigh bridges and parts thereof, which are excisable goods falling under Chapters 72.00, 84.00 and 90.00 of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f requests and reminders both oral as well as in writing. 9. A writ petition being W.P. 249 of 2005, filed by the petitioners, was disposed of by an order dated 24th February, 2005, whereby the excise authorities were directed not to proceed with the adjudication proceedings, without supplying copies of documents, relied upon in the show-cause notice, to the petitioner. 10. The petitioners have contended that after the order dated 24th February, 2005 was passed, the petitioners and/or their representatives visited the office of the concerned respondents several times and also wrote several letters including letters dated 2nd December, 2005, 12th December, 2005 and 16th December, 2005 requesting supply of copies of the documents relied upon in the show cause notice, but to no effect. 11. According to the petitioners, the petitioners wrote a letter dated 22nd December, 2005, calling upon the respondent Commissioner to supply copies of documents relied upon in the show-cause notice, in terms of the order dated 24th February, 2005, within a fortnight, failing which it would be deemed that the respondents did not intend to proceed with the impugned show-cause notice any further. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving reasons for payment of duty on provisional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis at such rate or on such value as may be specified by him. (2) The payment of duty on provisional basis may be allowed, if the assessee executes a bond in the form prescribed by notification by the Board with such surety or security in such amount as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, deem fit, binding the assessee for payment of difference between the amount of duty as may be finally assessed and the amount of duty provisionally assessed. (3) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall pass order for final assessment, as soon as may be, after the relevant information, as may be required for finalizing the assessment, is available, but within a period not exceeding six months from the date of the communication of the order issued under sub-rule (1) : Provided that the period in this sub-rule may, on sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been done. 19. The suggestion on behalf of the respondents that the impugned notice is not under Section 11A of the Central Excise Act, 1944, but a show cause notice for finalization of assessment is not acceptable. There is no provision in the Central Excise Act, 1944 or the Rules and Regulations thereunder for issuance of show cause notice for finalization of provisional assessment. 20. Moreover, Mr. Mittal rightly pointed out that provisional assessment had to be finalized by the Assistant Commissioner within a period not exceeding six months from the date of communication of the order of provisional assessment. The Commissioner could, for sufficient reasons, recorded in writing extend the time for finalization of assessment by another 6 months. If the assessment was not finalized within one year also, the Chief Commissioner could grant further extension for such period as he found reasonable, provided there were good and sufficient reasons for the inability to complete assessment within one year. It would, however, be obligatory for the Chief Commissioner to record reasons. In the instant case, there does not appear to be any order of extension and in any case, no reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition was filed challenging the impugned show cause notice inter alia on the ground of the same being violative of the principles of natural justice, since documents relied upon by the respondent Collector had not been disclosed to the petitioners. However, the failure of the respondent Collector to comply with the order dated 24th February, 2005 of this Court directing the concerned respondents to supply the documents relied upon in the impugned show cause notice, to the petitioners gave rise to a fresh cause of action to the petitioners. 26. Even though the respondent Collector did not proceed with adjudication in terms of the impugned show cause notice, without disclosing and/or supplying the requisite documents, the proceedings could not indefinitely have been kept pending against the petitioners. There is substance in Mr. Mittal's contention that there being no materials except the show cause notice dated 5th March, 1992 and the appellate order dated 29th September, 1993, the impugned show cause notice and all proceedings pursuant thereto are liable to be quashed. 27. The short question in this writ petition is, whether the impugned notice pertaining to the period fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der with intention to evade payment of duty, even then the notice would have to be served within five years from the relevant date. No show cause notice could in any circumstances have been issued on 27th March, 2002 for any period prior to 27th March, 1997. 30. The impugned show cause notice has apparently been issued on the same set of facts for which the show cause notice dated 5th March, 1992 for the period from 1986 to 1992, has been issued. This is evident from the communication dated 7th May, 2007 of the respondent authorities, contending that the only documents relied upon in impugned show-cause notice, were the earlier show-cause notice and the appellate order of CEGAT in proceedings arising out of the earlier show-cause notice. 31. In M/s. P B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in 2003 (153) E.L.T. 14 (S.C.) the Supreme Court held that where an earlier show-cause notice had been issued in respect of the same subject matter, it could not be said that there was any wilful suppression or misstatement for invocation of the extended period of limitation. 32. The aforesaid proposition of law laid down in M/s. P B Pharmaceuticals (P) Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured, opening balance, quantity produced or manufactured, inventory of goods, quantity removed, assessable value, the amount of duty payable and the duty actually paid. 39. In view of Rule 53(2) of the Central Excise Rules, 1944 and Rule 10 (3) of the Central Excise Rules, 2002, such records, were at all material times, required to be preserved for a period of at least five years from the end of the financial year to which the records relate. There being no obligation on the part of an assessee to maintain records beyond a period of five years, there could be no question of any show cause notice after expiry of the aforesaid period of five years as otherwise the assessee would be denied the opportunity of effective defence. 40. Now the question is whether this Court should reject the writ petition on the sole ground of existence of the alternative remedy of contesting the proceedings pursuant to the impugned show cause notice. 41. The power of this Court, under Article 226 of the Constitution of India to issue writs and orders is unfettered. The Constitution does not impose any limitation on exercise of power by the High Court under Article 226 of the Constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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