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TMI Blog2018 (7) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... us (Hon'ble Mrs. Justice S.Sujatha) was also a party, remanded the case back of the CESTAT for the limited purpose of looking into two aspects raised before this Court in the earlier round of litigation, namely, availability of S.3A of the Central Excise Act, 1944, for the period of assessment 2003- 04 & 2004-05 which provides for, "Charge of Excise duty on the basis of capacity of production in respect of notified goods", since provision of S.3A were brought on the Statute Book w.e.f.10.05.2008 and another aspect relating to whether the goods in question, namely, "Gutkha", were notified for the purpose of S.3A or not?. 2. The relevant directions of this Court in the earlier judgment as aforesaid are quoted below for ready reference:- "13. It is by now well settled that all taxing statutes are to be strictly interpreted. Further in normal circumstance, when there is conscious omission on the part of the Parliament for charging the excise duty based on the production capacity by virtue of Section 3-A, it will have the repercussions for such a course to be made available to the assessing authority. Further, even as per Section 3-A, the goods are required to be notified for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the contentions so raised is not a mere question of fact but, is a mixed question of law and facts, if the ultimate amount quantified in the show-cause notice goes beyond the reasons recorded or reasons appended to the show-cause notice, and thereafter at the time of confirmation of the demand, the said aspect is not considered. It may fall in the arena of observance of not only the principles of natural justice but, may also fall in the arena of self-contradictory stand resulting into ultimate no sufficient opportunity to meet with the same. When the question arise for observation of the principles of natural justice, it would be a question of law though may be it is based on certain factual premise. 16. We would have considered the matter strictly as to whether such a contention should be examined by this Court, when the contention was not so raised before the Tribunal. However, considering the peculiar circumstances that, as referred to herein above, on the aspects of availability of Section 3-A and on the aspects as to whether goods were so notified for the purpose of charging excise duty, when we have found it proper to remand the matter to the Tribunal, we find that it wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter namely, whether the ultimate amount of evaded duty quantified could go beyond the quantification done in the Show Cause Notice issued to the assessee or not, the learned Tribunal held in favour of the assessee, to the effect that such a demand could not go beyond the show cause notice and therefore, the excess demand raised by the Adjudicating Authority beyond the show cause notice was struck off and finally, the demand as raised to the extent of show cause notice was upheld by the learned Tribunal. 4. The learned Tribunal noted in the impugned order in para-16 that though the Show Cause Notice was issued to the assessee raising a demand of evaded duty to the extent of Rs. 4,29,95,446/- computed on the basis of production capacity and unaccounted cotton bags purchased for packing of 'Gutkha', but since the computation of evasion of duty was worked out only to the extent of Rs. 2,82,06,656/-, in the Show Cause Notice, the demand of evaded duty was finally restricted to the aforesaid amount of Rs. 2,82,06,656/-. 5. The incidental penalties imposed in the earlier round of litigation was also reiterated by the learned Tribunal in the impugned order. 6. Being aggrieved by the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city of production in respect of such notified goods, was brought on the Statute Book only on 10.05.2008 and was therefore not available as such to be invoked for the purpose of demand of allegedly evaded excess duty and therefore, the same was not referred either in the show cause notice or in the adjudication order, is a finding which is without any fault. 12. The fact remains that the said provision was brought on the Statute Book only w.e.f 10.05.2008 and therefore, there was no question of the authority concerned referring to the said provision of S.3A on an earlier occasion prior to 10.05.2008. But, nonetheless, to estimate the extent of evasion of duty, there was no prohibition in applying the criteria of either production capacity or other evidence gathered by the Revenue for estimating the said evasion of duty even for such prior period. 13. The facts in the present case would reveal as discussed by the learned Tribunal in the earlier round of litigation as well as again reaffirmed in the second round by the learned Tribunal that the authorities below have not only taken into account the production capacity of the assessee, who manufactures "Gutkha" on basis of clandesti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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