Customs, Excise and Gold Tribunal - Tamil Nadu
M/S. Madurai Meenakshi Chockanathar ... vs Commissioner Of C.Ex., Madurai on 30 April, 2001
ORDER
Shri Jeet Ram Kait
1. This is an appeal filed by M/s.Madurai Meenakshi Chockanathar Love-O Brothers on the ground that no show cause notice has been issued, though one of the noticees had waived the issue of SCN.
2. Ld.Counsel Shri R.Raghavan, appearing for appellants submits that the issue is already covered by this Bench decision rendered in the case of M/s.Hiflo Systoems & M/s.Rhino Pipes vide final order No.580 & 581/01 dated 19.4.2001 wherein the following the judgements have been noted :-
(i) CCE Vs KOSAN METAL PRODUCTS LTD. 1988 (38) ELT 573 (SC)
(ii)UNIVERSAL ELECTRONICS Vs CCE 1998 (99) ELT 134 (T)
(iii) EKAM CHEMICALS Vs CCE 1998 (98) ELT 46
(iv) CCE Vs. ASFER ENGINEERS 1998 (100) ELT 157 (T)
3. The Bench after noting the above Tribunal judgements held in para-4 as follows :-
"On a careful consideration of the submissions made by both the sides, we notice that, notwithstanding the fact that the assessee had waived the show cause notice and paid the duty that by itself will not be a ground for the adjudicating authority to pass an order in original without issue of show cause notice. The issue of show cause notice to raise the demand under Rule 9(2) read with the proviso to section 11AC of the Act is mandatory and it has to be statutorily discharged, as held by the Apex Court in the case of CCE Vs Kosan Metal Products (supra) and Madhumilan Syntex's case- 1988 (35) ELT 349 (SC). These judgements have since been followed in a larger number of cases. In view of the ratio of the judgement and the issue being settled one and as in the present case, there is a fundamental error committed by not issuing a show cause notice for raising demands, and therefore passing of an order-in-original, is not sustainable. Further, the confirmation of penalty prior to the enactment of section 11AC is also not sustainable in law, in view of the Apex Court judgement cited. The preliminary objection raised by the Consultant that demands are unsustainable without issue of show cause notice is required to be accepted in both the cases. In view of the above findings and respectfully following the ration of the citations referred to above, the impugned orders are set aside and the appeals are allowed with consequential relief, if any, as per law.
4. Ld.Counsel has also pointed out that this issue is also covered by another order of this Bench in the case of VISU PIPES AND FITTINGS PVT.LTD Vs CCE reported in 1998 (24) RLT 679 (CEGAT) wherein also it was held that the issue of show cause notice is mandatory under Sec.11A.
5. Heard Ld.DR Shri S.Kannan who reiterates the findings given by the Commissioner, and stated that in view of the fact that show cause notice has been waived by them, issue of show cause notice is not necessary.
6. We have considered the submissions made by both sides, and keeping in view of order of this Bench on the case of M/s.HIFLO SYSTEMS & RHINO PIPES (supra) and VISU PIPES AND FITTINGS PVT.LTD (SIC) and (supra), (SIC) we are of the considered opinion that issue of show cause notice in Central Excise cases is mandatory. We, therefore, set aside the order of the Commissioner (Appeals) and allow the appeal with consequential relief, if any, as per law.
(Pronounced and Dictated in open court)