TMI Blog2002 (9) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... in exercise of writ jurisdiction, but in the facts of this case, we are satisfied that the condition precedent for invoking Rule 209A of the Central Excise Rules being not satisfied question of taking any penal action against the Petitioners does not arise at all and hence instead of permitting the authorities to adjudicate we have decided to hear the matter on merits itself. 3.The facts having bearing of the subject-matter of the present petition are as follows : In the year 1985, relevant to the present petition, the Petitioners were holding high ranking position as Production Manager, Deputy General Manager and General Manager (Taxation) in Larson and Tubro Limited (hereinafter "Company" for short). The said company in the year 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 3 of the Act became payable at the rates set forth in the Schedule to the Central Excise Tariff Act, 1985 ("CET" for short). By a letter dated 22nd July, 1986 the Petitioners filed revised classification list seeking approval of PLC under the new Tariff Heading No. 84.71 of the CET, which according to the Petitioners corresponds to Item No. 33DD of the erstwhile Tariff. The Superintendent of Central Excise after seeking certain clarifications from the Petitioners, by a letter dated 28th November, 1986 informed the Petitioners that the classification of the PLC under Heading No. 84.71 is approved. 6.As new exemption became available to the PLC's in the year 1987-88 budget, the company filed revised classification list classifying t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been paid under the Rules. 8.Challenging the validity of said show cause notice both the Company and the Petitioners filed separate writ petitions in this court. Writ Petition No. 1021 of 1989 filed by the company was admitted by this Court and the adjudication of the show cause notice was stayed against the company. However, when the said petition filed by the company was taken up for final hearing, by an order dated 6th August, 2002 the company was permitted to withdraw the petition so as to allow the Respondents to adjudicate the show cause notice against the company in accordance with law regarding the classification of the goods. The present petition relates to challenging the said show cause notice dated 29th September, 1988 in so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s will have no jurisdiction to proceed against the Petitioners and the proposed action against the Petitioners would be ex facie, illegal and void. It was submitted that no offence is committed by the Petitioners and hence, the show cause notice issued against the Petitioners was liable to be quashed and set aside. 10.Mr. S.M. Shah, learned Counsel appearing on behalf of the Respondents on the other hand submitted that this Court should not entertain the writ petition at the show cause notice stage as the petitioners have approached this Court prematurely even before the show cause notice is adjudicated upon by the Excise Authorities. It was submitted that it was open to the Petitioners to urge all contentions before the Excise Authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es effected by the company during the relevant period were as per the approved classification. Under the circumstances if the Respondents want to change the classification of the goods from Tariff Headings 84.71 to 85.37 and seek to recover the differential duty, it will not be a case of confiscation of goods so as to attract Rule 209A of the CER. The Apex Court in the case of Collector of Customs, Baroda v. Cotspun Limited reported in 1999 (113) E.L.T. 353 (S.C.) has held that the demand contrary to the approved classification list/price lists has to be prospective from the date of the show cause notice. The Apex Court in that case has further held that the differential duty cannot be recovered on the ground of short-levy, when the duty ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiders that the goods in question were liable to be confiscated. On the contrary the specific case of the Respondents in the show cause notice is that the goods cleared on the basis of approved classification under Tariff Heading No. 84.71 are liable to be classified under Tariff Heading No. 85.37 and the differential duty is liable to be recovered from the company. It is not the case of the revenue that any goods have been clandestinely removed so as to invoke penal provisions against the Petitioners. 13.From the particulars set out in the writ petition which is not controverted by the Revenue, it is evident that at the relevant time, even the excise authorities were of the opinion that the PLC's were classifiable under Tariff Heading ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
