TMI Blog2015 (3) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... se duty. Through Rule 12 CCC of the 2002 Rules, the Central Government enabled the concerned assessing authority to place restriction as to the facility of making deferred payment of central excise duty, in case it is noticed that the manufacturer is resorting to evasion of duty or other unlawful activities. Similarly, if a manufacturer is said to be resorting to such acts and omissions, the authority is also conferred the power to place restriction on the utilization of CENVAT credit facility for a specified period, as provided in Rule 12 EEE of the Rules. The petitioner is unable to convince this Court that the rules, referred to above, are contrary to any specific provisions of Central Excise Act or for that matter the Constitution of India. Except taking a vague, general and espacious plea, no specific grounds are urged nor any precedent cited. - The judgments rendered by the Delhi High Court in Vinay Wires and Poly Products Pvt. Ltd. Vs. Member (Central Excise), Central Board of Excise and Customs, New Delhi [2010 (1) TMI 30 - DELHI HIGH COURT ], and Gujarat High court in Vishal Engineering Vs. Union of India & Ors. [2011 (7) TMI 1090 - GUJARAT HIGH COURT] are in cases whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director Investigations, office of the Director General i.e. the 3rd respondent, informed the petitioner that all the documents, relied upon by them in the proceedings, are furnished, and that a personal hearing is arranged on 23.07.2012. The petitioner submitted another representation, dated 20.07.2013, stating, inter alia, that in view of the reasons mentioned therein, the proposed hearing, fixed on 23.07.2013, is unwarranted, and needs to be avoided by withdrawing the show cause notice dated 14.05.2013. Thereafter, the Member, Central Board of Excise and Customs, the 2nd respondent herein, passed an order, dated 09.12.2013, directing that the facility of monthly payment of excise duty for the petitioner is withdrawn for four months, and the facility of availing the CENVAT credit be denied for the same period. The said order is challenged in this writ petition. In that very context, the petitioner has challenged Rule 12 AAA of the CENVAT Credit Rules, 2004 (for short '2004 rules') and Rule 12 CCC of the Central Excise Rules, 2002 (for short '2002 rules') as being ultra virus the provisions of the Central Excise Act and the Constitution of India. The contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities to pass orders in violation of settled principles of law. Ms. Nivedita Nirvikar , learned counsel for the respondents, on the other hand, submits that the rules that are challenged in the writ petition are just the provisions enabling the Government to place restrictions upon a manufacturer or exporter, and the petitioner did not point out as to how, those provisions are contrary to the Central Excise Act or the Constitution of India. She submits that the show cause notice itself, the list of documents on which reliance is placed, was furnished and though all the documents have been furnished, the petitioner refused to participate in the enquiry, and left with no alternative, an order in terms of the law is to be passed. Learned counsel further submits that the authority that issued notice, arranged for hearing and arrived at a conclusion as to the nature of restrictions, that are to be placed upon the petitioner, and that the 2nd respondent did nothing more, than verifying the propriety and correctness of the order, so passed. Learned counsel submits that decision has been taken by 3rd respondent itself, and the mere fact that it was submitted for approval to the 2nd r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the premises, only after payment of the central excise duty. Since the prepayment of excise duty for each consignment may lead to some hardship, the facility of payment of excise duty, periodically, is extended to the manufacturers. Wherever such facility is extended, the manufacturer can remove the goods without prior payment, but the excise duty payable thereon must be remitted at certain intervals. Secondly, the Central Government has created the facility of adjustment of duty on raw-materials and other components that go to the process of manufacture, against the duty payable on the finished product, at their level. This would, inter alia, lessen the burden of payment of excise duty. This is called CENVAT credit. Through Rule 12 CCC of the 2002 Rules, the Central Government enabled the concerned assessing authority to place restriction as to the facility of making deferred payment of central excise duty, in case it is noticed that the manufacturer is resorting to evasion of duty or other unlawful activities. Similarly, if a manufacturer is said to be resorting to such acts and omissions, the authority is also conferred the power to place restriction on the utilization o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rao Vs. A P State Road Transport Corporation (AIR 1959 SC 308) , and Automotive Tyre Mfrs. Association Vs. Designated Authority [(2011) 263 ELT 481 (SC). In Gullapalli Nageshwara Rao's case, the Supreme Court held as under, The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enable the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure. We came across several hurdles in the instant case in the context of applying the principle enunciated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Member, Central Excise, CBEC as per Notification No. 6/2002- CE( NT) dated 13.03.2012. we shall explain our case before the authority through our Counsel at the hearing to be fixed after all the records and documents as required are provided. 12. We also request you to reply point-wise and para -wise to this letter to enable us to make further submissions and objections on receipt of your reply to the present preliminary objections which we shall prepare and file detailed final reply and effective personal hearing be fixed thereafter before any decision is to be taken in accordance with law by the competent authority to withdraw the notice wrongly issued. In another communication, dated 29.05.2013, petitioner requested or insisted on the respondents not to proceed further. In their letter, dated 09.07.2013, the respondents informed the petitioner as under, Please refer to this office Notice of personal hearing for 23.05.2013 and your letters dated 23.05.2013 and 29.05.2013. As requested in your above referred letter dt . 23.05.2013, the copy of the sent deterrent proposal of the ADG , DGCEI , Kolkata Zonal Unit is being enclosed herewith alongwith all of the referr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
