9911796707
TMI Blog1991 (5) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... types of paper and paper board, provided for in the Table to the said notification under separate headings. For the purpose of this application, the following two headings are relevant viz. 11 and 13 of the table to the said notification :- This read as follows: Sl. No. Description Rate Condition 11. Paper board of the following varieties, namely, pulp board, duplex board and triplex board. Ten per cent ad valorem plus one thousand eight hundred and ten rupees per metric tonne. 13. Paper and paper boards other than those specified in S. Nos. 1 to 12. Ten per cent ad valorem plus one thousand and four hundred and thirty rupees per metric tonnes. 3. The petitioner submitted two classification lists in Form-1 dated 21-4-1983 and 6-11-1983 in respect of the said Chromo Board. The petitioner claimed that the said Chromo Board was classifiable under Heading No. 13 of the said notification. The classification lists submitted by the petitioners' were approved provisionally by the respondents on 11-6-1983 and 9-3-1984 respectively. 4. As such the petitioner cleared Chromo Board from the petitioner's Factory after payment of Central Excise Duty under the Central Excises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the provisions of the Rule 9(2) of the said Rules read with Section 11A of the said Act. The Additional Collector also imposed a penalty of ₹ 50,000/- on the petitioner under Rule 173Q of the said rules "having regard to the facts and circumstances of the case". 7. The petitioner preferred an appeal from the order of the Additional Collector before the Customs, Excise, Gold (Control) Appellate Tribunal (CEGAT). The petitioner applied for waiver of pre-deposit. The CEGAT disposed of the application by rejecting the claim for waiver of pre-deposit of the differential duty but stayed realisation of the penalty amount and waived the pre-deposit as far as the penalty amount. The petitioner accordingly deposited the amount of differential duty claim being ₹ 89,234.04. 8. The CEGAT disposed of the appeal filed by the petitioner by an order dated 1-3-1989....... nature of the petitioner's challenge in this writ petition. The said order in so far as it is material reads as follows :- "The appeal is with regard to imposition of penalty ... ...... The Advocate for the appellant Shri M. Chandra Shekharan has raised a point of law in that the two classific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia v. Godrej & Boyce Mft. Co. Pvt. Ltd. reported in 1989 (44) E.L.T. 3 (Bom.) (b) Vijay Tank and Vessels Pvt. Ltd. v. Collector of Central Excise reported in 1988 (38) E.L.T. 509 (Tribunal). (2) The respondents have relied upon the statements of third parties who were examined behind the back of the petitioners and who were not produced before the petitioners for cross examination. The respondents not having produced the said witnesses for cross examination, the entire proceedings were vitiated. Reliance has been placed on :- (a) Phulbari Tea Estates v. Its Workmen reported in AIR 1959 SC 1111. (b) Kishinchand Chellaram v. Commissioner of Income Tax reported in 125 ITR 713. (3) The proceedings were time barred. There were no circumstances justifying the taking of proceedings after the period of six months as specified under Section 11A. It could not be said that the petitioner was guilty of any fraud or collusion or wilful misstatement or suppression of fact as the petitioner had disclosed all relevant material before the officer concerned. Reliance has been placed on: Collector of Central Excise v. Chemphar Drugs & Liniments reported in 1989 (40) E.L.T. 276 (S. Q). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pre-deposit of differential duty show that it was a disputed amount. Furthermore the point of law raised by the petitioner before the Tribunal viz. that unless the classification was approved finally there would be no question of raising any demand against the petitioner, would go to the root of the matter and would effect the very jurisdiction of the authorities to issue a show cause notice against the petitioner. In other words the point of law raised would affect both the question of penalty as well as the payment of differential duty. There is no reason why the petitioner should have given up the point of law as far as the differential duty was concerned and yet pressed the same only with regard to the question of payment of penalty. 12. It also appears from the order dated 1-3-1989 that the respondents counsel had himself conceded that a demand can be raised only after finalisation of the classification list. Finally the question whether a show cause notice can be issued under Section 11A of the Act before the final assessment is a matter of construction of a statutory provision. It is well established that there can be no estoppel against a statute. 13. The point has i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per officer. If the proper officer is of the opinion that on account of any inquiry to be made in the matter or for any other reason to be recorded in writing there is likely to be delay in according the approval, he shall either on a written request made by the assessee or on his own accord, allow such assessee to avail himself of the procedure prescribed under Rule 9B for provisional assessment of the goods." 17. Rule 9B of the said rules provides as follows :- "9B - Provisional assessment to duty. - (1) Notwithstanding anything contained in these rules - (a) where the proper officer is satisfied that an assessee is unable to produce any document or furnish any information necessary for the assessment of duty on any excisable goods; or (b) where the proper officer deems it necessary to subject the excisable goods to any chemical or any other test for the purpose of assessment of duty thereon; or (c) where an assessee has produced all the necessary documents and furnished full information for the assessment of duty, but the proper officer deems it necessary to make further inquiry (including the inquiry to satisfy himself about the due observance of the conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t authorities are themselves of the view that until the finalisation of the assessment, no show cause notice under Section 11A of the Act could be issued. Reference may be made to the decision of the Tribunal in the case of Vijay Tank and Vessels Pvt. Ltd. (Supra), in which the Tribunal stated: "We would also like to note that while the RT 12 assessment was itself made on 31-12-1985 show cause notice was issued even prior to that on 4-2-1985. We are at a loss to understand how a show cause notice could be issued under law even before the finalisation of the assessment on the RT 12." 20. It was submitted on behalf of the petitioner (which submission is not disputed by the respondents) that the respondents have not finally approved the classification list with regard to Chromo Board till today. Therefore, the condition precedent to the exercise of power under Section 11A(1) of the Act is absent. For the reasons aforesaid, I must uphold the first contention of petitioner and hold that the show cause notice was issued without jurisdiction. 21. This finding by itself would have been sufficient to dispose of the writ petition. However, as I intend to pass certain directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to cross examine the witnesses. 24. Since there is a possibility of fresh proceedings it is made clear the petitioner has a right to cross examine witnesses whose statements may be relied on although the right may be waived. 25. As far as the third contention of the petitioner is concerned, in my view it is not open to the petitioners to raise the contention of limitation in view of the submission made by the petitioners that no demand at all could be raised until there was a final approval of the classification list. If the demand could not have been raised, the time would not begin to run under Section 11A. The principles laid down in the case of Chemphar Drugs & Liniments (Supra) are not therefore of relevance in this case. 26. The last submission of the petitioners relates to the petitioners claim for interest on the amount of ₹ 89,234.04 said to have been deposited by the petitioner during the pendency of the petitioners appeal before the Tribunal. The fact that the amount was not realised as such by the respondents is immaterial. The deposit was made because the respondents had demanded the money from the petitioners. Even in cases where the assessee has paid mon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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