TMI Blog2012 (9) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... J. REPRESENTED BY : Shri N.C. Roychowdhury, Sr. Counsel, for the Respondent. [Order per : I.P. Mukerji, J.]. Facts Arguments : One is an appeal from the Judgment and Order dated 12th January 2006 passed by the Hon ble First Court in W.P. No. 672 of 1998, Delta International Limited v. The Commissioner of Customs and Others. This judgment and order adopts the judgment and order 12th May 2003 in W.P. No. 900 of 1998, where the facts are identical. This judgment and order is also under appeal before us. We will discuss the facts of W.P. No. 900 of 1998, as it will cover the facts of the other writ as well. 2. The subject matter of challenge is very short. But these proceedings have continued in this court for a period of abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms duty was not paid. Further the said unit transferred some of the finished goods to its main unit in the domestic tariff area during 1989-1990 and 1990 to 1991. Both customs and central excise duties were not paid. These duties amount to Rs. 7,08,98,160/-. Applicable interest @ 20% per annum from the date of clearance of the goods has also been claimed by the customs authorities. 7. It is contended on behalf of the appellant/petitioner that the duty which was sought to be levied was under the proviso to Section 3 of the Central Excise Act, 1944 which is as follows : Provided that the duties of excise which shall be levied and collected on any [excisable goods which are produced or manufactured, - (i) * * * * * (ii) by a hundr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court while upholding the order of the Tribunal said that such duty was excise duty and not customs duty. It was held that the show cause notice was defective. He has also cited Commissioner of C. Ex. Customs, Mumbai v. I.T.C. Ltd. reported in 2006 (203) E.L.T. 532 (S.C.), and Collector of Central Excise, Bhubaneshwar v. Re-Rolling Mills reported in 1997 (94) E.L.T. 8 (S.C.), and argued that since there was provisional assessment and no final assessment, there could not be any demand for duty by the show cause notice. We were also shown Directorate of Enforcement v. Deepak Mahajan, reported in 1994 (70) E.L.T. 12 (S.C.) to argue that powers under the Customs Act, 1962 and Central Excise Act, 1944 are to be exercised by officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-Cus., dated 31-8-2000 on Customs Officers; (d) Notification No. 38/2001 dated 26-6-2001 whereby Customs Officers were authorized to act as Central Excise Officers in respect of 100% EOU. All the above notifications have been filed in Court being annexure to Affidavit of Document dated 17-11-2006. (e) P.D. Bond dated 8-12-1998 in favour of the President of India through the Commissioner of Customs. 14. Under Section 12E (renumbered after amendment) of the Central Excise Act, 1944 a central excise officer may exercise the powers and discharge the duties conferred or imposed by this Act on any other central excise officer who is subordinate to him. The appointment of customs officers is dealt with in Section 4 of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral justice. 17. The court in its appellate jurisdiction should not, on the basis of submissions made in the affidavit or in the notes of submission or from the bar, allow to incorporate the missing ingredients in the show cause notice. That is plainly impermissible. The show cause notice has to be adjudged the way it is issued. The duty described in the show cause notice is described as customs duty and the show cause notice has been issued by a customs officer. The court should not travel beyond this point and try to unearth the details of the matter so as to justify or unjustify the show cause notice. 18. The learned judge passing the final judgment and order dated 12th May 2003 in the writ application addressed the main issue correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o court with clean hands. Apart from that we do not find any other cogent reason in the judgment and order for dismissal of the writ application. 21. The only reason why the show cause notice falls through, in our opinion, is that it is completely devoid of any grounds or reasons or particulars in support of its claim for short paid customs duty against the appellant/writ petitioner. Therefore, on the basis of the principles in the above Supreme Court judgments this show cause notice has to be set aside. 22. We think if a point of limitation has been raised, in the facts and circumstance of the case it cannot be appreciated at all because the show cause notice itself is atrociously vague. This question which is mixed question of facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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