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BMW India Private Limited Versus The Union of India & ors.

2015 (10) TMI 567 - BOMBAY HIGH COURT

Challenge to the show cause notice - SCN propose to deny the CENVAT Credit prior to the date of registration while demand duty for such period - Duty demand u/s 11A(5) read with Rule 14 - Held that:- No doubt that this Court would not have ordinarily entertained the petition which challenges the show­cause notice. In ordinary course,the parties could have been directed to file reply to show cause notice and adjudicating authority could have been permitted to take decision in accordance with law. .....

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at the cenvat credit sought to be credited by the petitioner prior to the date of registration was inadmissible in law. The show­cause notice therefore demands as to why the said amount should not be recovered from the Petitioner and as to why interest and penalty should not be levied. Perusal of Section 32 M would reveal that the very order of settlement passed under Section 5 of Section 32F shall be conclusive as to the matters stated therein and no matters covered by such order shall be reope .....

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akash Shah a/w. Jas Sanghavi a/w. Niyati Hakani i/b. PDS Legal, Advocate For the Respondent : Mr. A.S. Rao a/w Mr. S.D. Bhosale, Advocate P.C.: 1 The Petition challenges the show cause notice issued to the Petitioner on 6/12/2013 thereby interalia calling upon the Petitioner to show cause as to why total inadmissible Cenvat Credit amounting to ₹ 20,78,77,048/­ should not be demanded and recovered from them under the provisions of Section 11A(5) of Central Excise Act, 1944 read with Rul .....

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sel appearing on behalf of the Petitioner submits that for the said period earlier show cause notice was issued to the Petitioner on 9/11/2012. The learned Senior Counsel for the Petitioner submits that the said show cause notice was issued on the premise that though the activities of the Petitioner could not strictly come within the ambit of definition of word manufacturing by deeming provision. It was included in the term manufacture . He submits that the Petitioner did not dispute with regard .....

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it is not registered. He submits that not only that but the Petitioner had relied on two judgments of the learned Settlement Commissioner itself in support of the said proposition. It is submitted that though the learned Tribunal had given an opportunity to the Revenue to point out Judgments taking contrary view, the Revenue did not produce any judgment before the Settlement Commission and as such the learned Tribunal had held that the claim for cenvat credit of the additional duty and special a .....

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he show cause notice which was the subject matter of the learned Settlement Commission is different. He therefore submits that Writ Petition be dismissed in limini. 4 No doubt that this Court would not have ordinarily entertained the petition which challenges the show­cause notice. In ordinary course,the parties could have been directed to file reply to show cause notice and adjudicating authority could have been permitted to take decision in accordance with law. However, it is noticed that .....

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ated therein and no matter covered by such order shall, save as otherwise provided in this Chapter, be reopened in any proceeding under this Act or under any other law for the time being in force. Perusal of the said section would reveal that every order of settlement passed under sub­section of section 32F shall be conclusive as to the matters stated therein and no matter covered by such order shall, as otherwise provided in this Chapter, be reopened in any proceeding under this act or unde .....

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the period of registration which in the opinion of the department amounted to contravention of the Central Excise Act and Rules thereunder. Perusal of paragraph 20 and 21 of the impugned show­cause notice makes it clear that the issue was with regard to the non­payment of duty prior to registration. The material on record further reveals that the petitioner accepting that it was liable to payment of duty, had approached the learned Settlement Commissioner only with a contention that eve .....

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uty paid on auto parts at the time of import. This is because the applicant was not registered with Central Excise authorities. However, the Karnataka High Court in the case of Mportal India Wireless Solutions (P) Ltd. (CEA No. 6 of 2011) has held that there is no statutory provision which prescribes that this is a mandatory pre condition for availing and utilizing cenvat credit. The Bench had specifically asked Revenue to cite any provisions or any order of a Court which is contrary to the deci .....

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y and Special Additional Duty paid at the time of import towards payment of Central Excise duty in the present case should be allowed. 8 It would also be relevant to refer to operative part of the order passed by the learned Tribunal as could be seen in paragraph­20. In so far as payment of duty is concerned, the learned Settlement Commission has ordered thus : Duty:­ The Central Duty in this case is settled at ₹ 19,99,33,727/­ against the applicant. An amount of ₹ 19,99, .....

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