TMI Blog2017 (3) TMI 1909X X X X Extracts X X X X X X X X Extracts X X X X ..... stantiate but, the fundamental right of the petitioner has been infringed or the authority had acted wholly without the jurisdiction or the impugned order is such that it shocks the conscience of the Court. In the present case, the petitioner raises a point of lack of jurisdiction on the authorities in issuing the show-cause notice. The contention of lack of jurisdiction is premised upon the show-cause notice dealing with a period which is not permissible under Section 11A(4) of the Central Excise Act, 1944. The impugned show cause which deals with a period which is barred by limitation prescribed under Section 11(4) of the Act of 1944. Limitation is a point of jurisdiction - The impugned show-cause notice alleges that there were suppres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t conclusion. The petition has no merits and is not dismissed. - W.P. No. 5757(W) of 2017 - - - Dated:- 9-3-2017 - Debangsu Basak, J. For the Petitioners : Mr. Pranab Kumar Dutta, Mr. N.K. Chowdhury, Mr. Arijit Chakraborty, Mr. Nilotpal Chowdhury. For the Respondents : Mr. Somnath Ganguly, Mr. Bhaskar Prosad Banerjee. ORDER The petitioner assails an order in original dated November 29, 2016 passed by the Commissioner, Customs, Central Excise and Service Tax. Learned senior advocate for the petitioner submits that although the impugned order is appealable to the Customs, Central Excise and Service Tax Appellate Tribunal (CSTAT), the present writ petition is maintainable. He submits that, the authorities have acte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show-cause notice was issued subsequent to the order of the Tribunal and the Hon'ble Supreme Court of India in Oil India Limited (supra). Therefore, the show-cause notice issued is bad as the department is required to issue a show-cause notice which is inconsonance with the law pronounced by Hon'ble High Court or the Hon'ble Supreme Court. In the present case, the show-cause notice is against the classification accepted upto the Hon'ble Supreme Court. He relies upon 1992 (58) E.L.T. 508 (Cal) (Indian Cardboard Industries Ltd. Vs. Collector of Central Excise) in support of such contention. Learned advocate for the department submits that, the show-cause notice was issued on the ground that the petitioner had undertaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustained in spite of existence of a statutory alternative remedy, in the event the petitioner able to substantiate but, the fundamental right of the petitioner has been infringed or the authority had acted wholly without the jurisdiction or the impugned order is such that it shocks the conscience of the Court. In the present case, the petitioner raises a point of lack of jurisdiction on the authorities in issuing the show-cause notice. The contention of lack of jurisdiction is premised upon the show-cause notice dealing with a period which is not permissible under Section 11A(4) of the Central Excise Act, 1944. The impugned show cause which deals with a period which is barred by limitation prescribed under Section 11(4) of the Act of 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is, however, an interim order and it clarifies that the observations made therein are prima facie. The final order passed in the proceedings of Infinity Infotech Parks Ltd. (supra) has not been placed for consideration before this Court. The impugned order in original finds that the product purchased by the petitioner had undergone a process to manufacture. Manufacture is admitted by the petitioner. The impugned order records it to be shown. Nothing has been placed before Court to suggest that such finding is perverse. The question is whether the product had underwent a change so as to come within a different classification at the end of the manufacture. The impugned order relies upon of a report of a chemical expert. A chemical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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