TMI Blog2017 (10) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and law about the limitation under Section 11A of the Act and the period of 10 years covered under the show cause notice, various stages of adjudication and appellate proceedings pending before the different authorities of the Respondents-Department, their inter se effect on each other, are all complex cobweb of facts which requires adjudication by the competent authority only and this Court cannot be called upon to pronounce upon the allegations, their merit, the possible defence its reply and reasons to be assigned by the concerned authority for adjudicating the same in a particular manner - It would be premature and undesirable to cut short the said enquiry and adjudication process at this stage. Ultimately, it is the quest of truth and truth alone being the guiding star in the process of the judicial dispensation and that should be the touch stone for testing such challenges at the preliminary stages of the proceedings. This Court does not find any good ground for interference in the Show Cause Notice at this stage - petition dismissed - decided against petitioner. - Writ Petition Nos. 53862-865/2015 (T-TAR) - - - Dated:- 29-8-2017 - Vineet Kothari, J. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undervaluation aspect and observed that The SCN has alleged that there is gross under valuation of the goods for the purpose of payment of duty on DTA sales which are effected from M/s HG to M/s HMG. However the subsequent invoices raised by M/s HMG on buyers have indicated that there is under valuation to the extent of 90.71% . This order was appealed against and the Hon ble CESTAT sent back the OIO for De novo adjudicated the SCN and has once again upheld the demand made in the SCN. On going through the SCN issued by DGCEI, it is seen that Central Excise Valuation Rules were invoked in place of Customs Valuation Rules. However, while adjudicating the case, Commissioner of Customs, Bangalore vide OIO Sl.No.16/2009 dated:22.05.2009 confirmed the same under Customs Valuation Rules holding that misquoting of Rules would not anyway vitiate the proceedings. Secondly, DGCEI had on the basis of evidence obtained by them in respect of clearances made in one transaction and applied the same to all the clearances for the entire period of 9/04 to 10/06, alleging that there was undervaluation to the extent of 90.71%. Moreover, for the purposes of arriving at the value of goods clandestinely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period covered by the aforesaid SCNs. In other words if the duty demands raised in the aforesaid SCNs are fully upheld, the amounts thereof would appear to call for adjustment towards the total duty demand raised in this SCN would appear to merit consideration in view of the fresh/new facts and evidence adduced in this SCN. 37: From the above paras, it is evident that M/s HG a 100% EOU unit imported marble blocks from 2004-05 to 2014-15 for export of Marble Slabs. However documents obtained during investigation reveal that M/s HG over invoiced exports in the shipping bills, misdeclared the contents of exports as marble slabs in the shipping bills, interchangeably used the abbreviations of granite for marble in the shipping bills during exports, changed the description of marble as granite in the export invoice by hand at US, raised bogus and false invoices for sale of Granite Slabs during export to SEZ units, misdeclared the import as rough marble block in the Bills of Entry instead of dressed marble blocks, declared falsely the quantum of export of Marble Slabs before CSEZ Customs to obtain permission for DTA sale of Waste Slabs, Inflated the amount of Scrap generated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is ex- facie much beyond the said period of limitation of 5 years and to this extent, the show cause notice deserves to be quashed. (ii) that the said show cause notice flies in the face of the earlier six show cause notices issued by the said authority which have resulted in adjudication orders passed by the competent authorities and which are the subject matter of appeals filed by the assessee which are pending at the higher Appellate forums and therefore, the Prl.Commissioner of Central Excise now cannot undertake any proceedings with regard to those periods which are already adjudicated upon and are subject matter of pending appeals and it would be absolutely contrary to not only the provisions of the Act but in breach of principles of judicial discipline and therefore, the said notice deserves to be quashed by this Court. The learned Senior counsel has relied upon the following judgments in support of his contention:- (a) Associated Cement Companies Ltd., vs. Union of India [1996 (88) E.L.T.348(Kar), (b) Dharampal Lalchand Chug and Ors. Vs. Commissioner of Central Excise [2015(323) ELT 753). 6. On the contrary, Mr.Jeevan J.Neeralgi, learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments of Hon ble Supreme Court in the case of Commissioner of Customs (Import), Mumbai vs. Jagdish Cancer Research Centre 2001 (132) E.L.T. 257 (S.C.) and Commissioner of Customs, New Delhi vs. C.T.Scan Research Centre (P) Ltd., 2003(155) E.L.T. (S.C.), which held that a limitation of 5 years prescribed under Section 28(1) of the Customs Act, 1962, would not apply in the case where the show cause notice is issued despite previous adjudication on the basis of such Revenue Intelligence inputs. (v) He has also relied upon the Bond conditions in the Bonds furnished by the Assessee at the time of import of marble and granite blocks. 7. Mr.Jeevan J.Neeralgi has drawn the attention of the Court to the following extract from his Statement of Objections (paras 8-10) filed in the Court:- Though the number of notices are issued against the petitioner, it can be seen from the above table that only two notices are issued against the petitioner involving marble slabs. Moreover, only one notice is issued to the petitioner for clandestine removal of marble slabs for 3 months only. In the this connection it is to bring to the notice of this Hon ble Court that the subject matter in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No.2-concerned authority also and the said authority can also very well decide these objections and contentions in accordance with law. (ii) Because this Court does not find the impugned show cause notice issued by the Respondent-authority as tainted with total lack of jurisdiction and therefore, interference in the same under Article 226 of the Constitution of India is not considered appropriate; (iii) the mixed question of facts and law about the limitation under Section 11A of the Act and the period of 10 years covered under the show cause notice, various stages of adjudication and appellate proceedings pending before the different authorities of the Respondents-Department, their inter se effect on each other, are all complex cobweb of facts which requires adjudication by the competent authority only and this Court cannot be called upon to pronounce upon the allegations, their merit, the possible defence its reply and reasons to be assigned by the concerned authority for adjudicating the same in a particular manner. The dissection of the contents of the impugned show cause notice at this stage is neither called for nor justified in the opinion of this Court. All the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esulted into these Revenue Intelligence inputs which forms the very basis of the present impugned show cause notice issued by the Addl.Director General of Revenue Intelligence. (viii) This Court would not express any opinion in the merits of contention raised as both sides as the right to defend is available to the petitioners-assessees which cannot be ruled out by putting the block of limitation, estoppel and res judicata and the judicial interference in such cases may result in miscarriage of justice and evasion of duty under both the laws may go un-adjudicated. (ix) While on the one hand, the assessee has a valuable right to defend its case and be heard in the matter in compliance with the principles of natural justice. At the same time, the Revenue s interest of collecting due tax and duty in accordance with the provisions of both the Acts also cannot be lost sight of. While the assessees rights are private and individual rights, the Revenue s interest is much larger public interest and it is nobody s case that all the assessees or tax payers should not abide by the provisions of the laws punctually and meticulously, but also fairly and transparently. If the petitioners-a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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