TMI Blog2005 (12) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... Kandhari Radio Corporation and the residential premises of the proprietor of the said firm. The officers on a reasonable belief resumed records and documents and based on further investigation, came to a conclusion that all the appellants i.e. M/s. Jeet Enterprises, M/s. Hi-Tech and M/s. Kandhari Separator Industries were involved in the manufacture of branded goods of M/s. "KRC" and were availing ineligible benefit of SSI exemption. Separate show cause notices were issued to all the three units demanding duty and penalty and on adjudication the duty was confirmed and penalties imposed. Penalty was also imposed on the proprietor/constituted attorney of all the three firms. On an appeal, the Appellate authority, came to a conclusion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of Revenue to follow the direction of the Hon'ble High Court. 4.The learned SDR on the other hand submits that the appellant M/s. Kandhari Radio Corporation's proprietor, Mr. Avtar Singh in his submissions before the Commissioner (Appeals) has accepted to pay the duty. He further submits that, the Commissioner (Appeals) has recalculated the duty amount payable based on such assurance, and hence the appeal of the appellant M/s. Kandhari Radio Corporation is to be dismissed and penalty imposed on other appellants is also to be upheld. He also further submitted that the department's appeal has to be allowed as the Commissioner (Appeals) has confirmed the demand by travelling beyond the show cause notice. 5.Considered the submissions m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, the proceedings initiated against an assessee would be vitiated and would be a serious violation of the principles of natural justice. The purpose of principles of the principles of natural justice is to prevent miscarriage of justice. 7.We find that the Hon'ble High Court of Calcutta in the case of Pradeep Co. v. Collector of Customs reported in 2003 (152) E.L.T. 294 (Cal.) has held as follows : "Having regard to the mandatory provision of Section 124 even if the petitioner was aware of such proceedings the duty to serve notice upon the petitioner and to adjudicate the question of confiscation and penalty in the manner indicated under Section 124 could not be shaken off. A mere plea of constructive notice is not a sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer to issue show cause notice is mandatory under the provision of Central Excise Act, 1944 - Section 11A ibid - Rule 233A of Central Excise Rules, 1944." (iii) Pendium Computer Academy v. C.C.E., Coimbatore - 2001 (137) E.L.T. 1020 (Tri.) has held that - "Demand for short levy under Section 11A of Central Excise Act, 1944 read with Rules 9 and 49 of Central Excise Rules, 1944 - Show cause notice - Non-issuance of show cause notice is a fundamental and non-curable error, hence, demand not to be confirmed." 9.We find from the above decisions that, it is a settled law, that, under Central Excise Act, 1944, a demand can be confirmed only on issuance of a show cause notice. Failure to issue a show cause notice is against the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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