TMI Blog2008 (9) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... een not disputed by the learned Additional Solicitor General appearing for the Revenue, he having accepted the fact that the classification of the "goods" of the writ petitioner-assesee-Madura Coats Limited, are covered under Sl. No. 3 (as extracted in the Table in the earlier paragraph of this judgment) and that there is no dispute in the fact that the assessee has already paid the additional customs duty on the same, we are of the view that no useful purpose would be served by remanding the cases to the departmental authorities for considering the same issue which had already been settled by the Supreme Court. W.P Allowed. - 19 to 21 of 2001 - - - Dated:- 30-9-2008 - S.J. Mukhopadhaya and V. Dhanapalan, JJ. [Judgment per : S.J. Mukhopadhaya, J.]. - The appellant-writ petitioner (M/s. Madura Coats Limited) has preferred the Writ Appeals against the impugned common order dated 3-11-2000 [2002 (144) E.L.T. 533 (Mad.)] passed by the learned single Judge in W. P. Nos. 19201 of 1992 and 5969 and 19286 of 1993, whereby and whereunder, the learned Single Judge, without deciding the Writ Petitions on merits, asked the writ petitioner-Madura Coats Limited to avail of the alternat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25-7-1991, as amended by Notification No. 83 of 1991/C.E., dated 19-8-1991 and Notification No. 23 of 1992/C.E., dated 1-3-1992, be not denied to the assessee in respect of the nylon sewing thread manufactured out of imported filament yarn and why the penalties be not imposed on it under Rules 9(2) and 173-Q of the Central Excise Rules, 1944, for violation of Rule 173-B, 173-G and 9(1) of the Central Excise Rules, 1944. One of such notices was issued on the assessee, vide C. No. V/54.02/15/28/92-Adjn, dated 26-6-1992 for the period 1-6-1987 to 31-3-1992. 7. According to the assessee, appropriate duty of excise has already been paid by it and in view of the exemption granted by the competent authority, vide different Notifications, the additional duty leviable under Section 3 of the Customs Tariff Act, 1975, was not payable. After about six years, i.e. in the year 1992, pertaining to the period of assessment for the year 1987, the Collector of Central Excise, Madurai, interpreted that as per Sl. No…..of Notification No. 53 of 1987/C.E, dated 1-3-1987, in the matter of exemption of excise duty granted for the double or multi-fold yarn made out of yarn falling under Chapters-52, 54 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86 and 1993, also referred to certain decisions of the Supreme Court in regard to the question of additional customs duty. According to the learned Counsel for the assessee, the demand of duty from retrospective date, i.e. from 1st October, 1986, has been made only by the Collector of Central Excise, Madurai and no other Central Excise authorities of India. A wrong interpretation has been given in regard to Notification No. 53 of 1987/C.E, dated 1-3-1987, giving reference to the decisions of the Supreme Court in the case of Khandelwal Metal and Engg. Works v. Union of India, reported in 1985 (20) E.L.T. 222 (S.C.) = 1985 (3) SCC 620, wherein, the Supreme Court held that since Section 3(1) of the Customs Act, 1962 enables the imposition of additional customs duty, the additional customs duty cannot be re-opened as the Countervailing Duty in lieu of Central Excise Duty and therefore, payment of Countervailing Duty on the imported man-made filament and fibres, would not be re-opened to avail of the exemption. According to the learned Counsel for the assessee, this was the reasoning for confirming the question of second incidence of Excise Duty of sewing threads and cords made out of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make submissions on the above claim of prospective operation, when the learned Single Judge kept the matters pending since 1993. 13. In the meantime, the Supreme Court of India, in the case of Hyderabad Industries Ltd. v. Union of India reported in 1995 (78) E.L.T. 641 (S.C.) = 1995 (5) SCC 338, observed that the correctness of the decision rendered in the case of Khandelwal Metal and Engg. Works [1985 (20) E.L.T. 222 (S.C.) = 1985 (3) SCC 620] (supra), requires consideration by a Larger Bench. Subsequently, the Constitution Bench (Five Judges) of the Supreme Court of India in the case of Hyderabad Industries Ltd. v. Union of India reported in 1999 (108) E.L.T. 321 (S.C.) = 1999 (5) SCC 15, taking into consideration the decision aforesaid, including the decision in the case of Thermax Private Limited - 1992 (61) E.L.T. 352 (S.C.) = 1992 (4) SCC 440 (supra), held that the interpretation of Countervailing Duty given in Khandelwal Metal and Engg. Works [1985 (20) E.L.T. 222 (S.C.) = 1985 (3) SCC 620], is incorrect and thereby, reversed the said decision [1985 (3) SCC 620]. 14. It is stated that the aforesaid judgment(s) of the Supreme Court were placed before the learned Single ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution has been interpreted to have come with effect from the date of the Notification No. 318 of 1986, dated 22-5-1986, the Central Government, having corrected the mistake earlier committed by it, it is only the Excise Collectorate, Madurai, who has given wrong interpretation that it will come into operation only from the prospective date and imposed the second incidence of Excise Duty for the period from 1-3-1986 to 5-10-1986. During the pendency of the Writ Petitions which are being challenged in the present Writ Appeals and the other Writ Petitions which are before us, the Central Government issued further Notification in 1993 and refund was sought for, but the Central Government, by their letter dated 13/21-10-1993, be impugned in V.P. No. 22276 of 1993, informed that the Board of Central Excise has examined the matter and it was not possible to accede to the request of refund/waiver. 16. Learned Counsel appearing for the assessee relied on Notification No. 467/86-C.E, dated 23-12-1986 (as seen from Notification No. 53 of 1987), wherein, with regard to the specified varieties of cotton yarn and man-wade fibres, etc., exemption had been granted by the Central Government i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted that the Supreme Court in the case of Porritts Spencer (Asia) Ltd. v. Collector of Central Excise, New Delhi, reported in 1999 (106) E.L.T. 18 (S.C.) - AIR 1995 SC 2344, in the case of Collector of Central Excise, Jaipur v. Banswara Syntex Ltd. reported in 1996 (88) E.L.T. 645 (S.C.) and in the case of Rajasthan Spg Wvg Mills Ltd. v. Commissioner of C.Ex., Jaipur, reported in 2003 (152) E.L.T. 32 (S.C.), having held that the single yarn alone would sustain the "duty" and not the double or multi-folded yarn made out of the duty-paid-yarns, the interpretation given by the Central Excise Authorities of Madurai, cannot be sustained. It is further submitted that in the case of Government of India v. Indian Tobacco Association, reported in 2005 (187) E.L.T. 162 (S.C.) = AIR 2005 SC 3685, the Supreme Court, having held that the amended Notification intended to rectify the mistake, would have retrospective effect and operation, the impugned common order passed by the learned Single Judge, as also the impugned show cause notice(s), cannot be sustained and are liable to be set aside. 20. Learned Counsel appearing for the assessee also referred to the decision of the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. We have heard the learned Counsel appearing for the parties and noticed their rival contentions. 24. Learned Additional Solicitor General appearing for the Revenue accepted that the classification of the 'goods' are covered under Sl. Nos. 3 and 4 of the Table quoted above in this judgment and that there is no dispute that the assessee has already paid the additional customs duty on the same. He also fairly accepted that the case of the appellant-writ petitioner-assessee (Madura Coats Limited) is covered by the decision of the Constitution Bench of the Supreme Court in the case of Hyderabad Industries Limited [1999 (108) E.L.T. 321 (S.C.) = 1999 (5) SCC 15] (supra), wherein the Supreme Court held that, " .... The levy of additional duty being with a view to provide for counter balancing the excise duty leviable, we are clearly of the opinion that additional duty can be levied only if on a like article excise duty could be levied. The decision in Khandelwal Metal Engg. Works case [1985 (3) SCC 620] to the above extent it takes a contrary view, does not appear to lay down the correct law….". 25. Now, the only question is that in spite of such undisputed facts and the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out. 31. The case of the respondent that the classification of the said products having attained finality pursuant to the decision of this Court, the appellants have no jurisdiction to issue impugned show cause notice on the ground on which it has been issued and it virtually amounts to re-opening of the issue which stands concluded by the decision of this Court, and that therefore it is an abuse of process of law. The High Court after referring to the history of litigation rightly concluded that the matter stood concluded by judgments of this Court and the High Court in respondents' case." 28. The question of "alternative remedy", fell for consideration before the Supreme Court in the case of Dhampur Sugar Mills Ltd. v. Union of India reported in 2000 (122) E.L.T. 333 (S.C.), and taking into consideration the fact that the petition in that case was pending for mor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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