TMI Blog2022 (3) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... r regarding number of funnels in PMPM than that of number of funnels as per report of manufacturer of machines. In case of ORYX FISHERIES PRIVATE LIMITED VERSUS UNION OF INDIA [ 2010 (10) TMI 660 - SUPREME COURT] where it was held that It is obvious that at that stage the authority issuing the charge- sheet, cannot, instead of telling him the charges, confront him with definite conclusion of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show cause notice gets vitiated by unfairness and bias and the subsequent proceeding become an idle ceremony - In view of above dictum of Hon'ble Supreme Court, if the facts of present case are considered, it would reveal that respondent conducted investigation based on intelligence information. Upon detailed investigation, as appearing in show-cause notice, it revealed that there was mis-declaration by petitioner, based upon which show-cause notice is issued to petitioner calling upon petitioner to submit reply within a particular period. Respondent has been authorized under Circular dated 10.2.2015 to issue show-cause notice. Hence, in the considered opinion of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme. The central excise duty is to be paid and collected on the basis of production capacity (deemed manufacture) of notified goods and not on the basis of manufacture and removal of excisable goods. The Central Government in exercise of its power conferred by Section 3A of the Act of 1944, issued Notification dated 1.7.2008 notifying 'Pan Masala Packing Machine (Capacity Determination and Collection of Duty) Rules, 2008 (for short 'the Rules of 2008'). The Rules of 2008 in itself is a complete Code. Under Rule 4 of the Rules of 2008 the only factor relevant to production is based on number of pouch packing machines available and operational in factory premises of manufacturer. In the year 2015, vide Notification No.6/2015-CE dated 1.3.2015, central excise duty is to be levied in proportionate with speed of pouch packing machines installed at factory premises of a manufacturer. After issuance of Notification dated 1.3.2015, petitioner submitted Form-1 declaring number of packing machines available and installed at factory premises of petitioner also specifying speed of each Pan Masala Packing Machine (for short 'PMPM'). Pursuant to declaration made, the offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought for has been denied to petitioner mentioning Section 8 (1) (h) of the Right to Information Act, 2005 against which petitioner preferred an appeal. Impugned show-cause notice is issued by the Principal Additional Director General, Directorate General of GST Intelligence, New Delhi who is having no jurisdiction to determine capacity of PMPM. Re-determination of capacity of PMPM was as per order of the Assistant Commissioner of Central Excise, hence respondent is having no jurisdiction to issue impugned show-cause notice to petitioner. Provisions of Rule 6 (2) of the Rules of 2008 specifically authorizes Deputy Commissioner or Assistant Commissioner of Central Excise to direct modification in the plan submitted by a manufacturer. The Assistant Commissioner has re-determined capacity of PMPM based on report of Chartered Engineer, which was never challenged or disturbed by any process of law, and thus it has attained finality. In show-cause notice reliance is placed on the report submitted by the Assistant Professor of IIT, Delhi but report based upon which show-cause notice is issued to petitioner, is denied. Even there is no mention as to which of the officers of department ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MPM manufacturers. All machines installed and operated at factory premises of petitioner are having capacity of packing more than 700 pouches per minute, which the petitioner was aware but made declaration of less capacity. Due to wrong mentioning of number of funnels in report of Chartered Engineer than what provided by machine manufacturer, capacity / speed of PMPM has been reduced. Detailed show-cause notice has been issued mentioning all facts as to on what basis show-cause notice is issued; assessing proposed liability and penalty thereupon. Petitioner is having efficacious alternative remedy of approaching authority by way of submitting reply to show-cause notice. Hence, in light of above rulings of Hon'ble Supreme Court as also of this High Court, writ petition challenging showcause notice is not maintainable. 4. I have heard learned counsel for the parties and perused record of writ petition. 5. Petitioner is engaged in the business of manufacturing of pan masala of various brand names and retail sale price. From the pleadings made in writ petition, it is clear that petitioner got installed different PMPMs of different MRPs at its factory premises. Main grievance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate cases where the show cause notices are issued by the officers of DGCEI. The practice of adjudication of DGCEI cases by field Commissioners shall also continue. 7. 4. Powers of the Board under sub-rule 2 of rule 3 of the Central Excise Rules, 2002, have been conferred on Chief Commissioners of Central Excise by notification no. 11/2007-C.E (N.T) dt. 1-3-2007 to specify the jurisdiction of the Commissioner of Central Excise for the purposes of adjudication within his jurisdiction. Director General of CEI has jurisdiction over the ADGs. Now, the jurisdiction of Director General has been extended over to Principal Commissioners/ Commissioners of Central Excise vide notification number 2/15 C.E. (N.T) dt. 10-02-15 so that he may assign cases, where show cause notices have been issued by the officers of the DGCEI, for adjudication to the field Commissioners also. 8. In view of Circular dated 10.2.2015 issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise Customs, New Delhi, submission of learned Senior Counsel for petitioner that impugned show-cause notice has been issued by an incompetent authority or authority having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted. 11.In case of Trade Tax Officer (supra), Hon'ble Supreme held thus:- 1.These appeals are against the judgment of the Allahabad High Court dated 21-1-2000. The respondent Company were clearing their goods on the basis that they were leather sheets within the meaning of Section 14 of the Central Sales Tax Act. A show-cause notice was issued to them claiming that the items cleared by them were not leather sheets and that a higher duty was required to be paid. The respondents filed a writ petition challenging the issuance of the show-cause notice. The High Court ignoring the well-settled law that against a mere issuance of a show-cause notice a court should be reluctant to interf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, notice has been issued in arbitrary exercise of powers and is an abuse of process of law. Hon'ble Supreme Court considering submissions of learned counsel for parties has held that show-cause notice was nothing but repetition of earlier show-cause notices with slight variations and dismissed appeal. 15. In case of Poona Bottling Co. Ltd. (supra) the authority served notice upon petitioner to show-cause why full rate of duty should not be charged on the products, which was replied by petitioner therein. A Division Bench of Delhi High Court came to conclusion High Court in exercise of powers under Article 226 of the Constitution of India can interfere if there is total lack of jurisdiction or complete non-application of mind and interdicted show-cause notice. 16. In case of Godrej Boyce Mfg. Co. Ltd. (supra), a Division Bench of High Court of Bombay considering the grounds on which High Court in exercise of jurisdiction under Article 226 of the Constitution of India can interfere with a show-cause notice, came to conclusion that notice issued was by authority who was having no jurisdiction. 17. In case of M/s Nkas Services Pvt. Ltd. (supra), show-cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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