Custom, Excise & Service Tax Tribunal
Cce, Chennai vs M/S. Hindustan Motors Ltd on 15 October, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/CO/21/2004 in E/246/2003
(Arising out of Order in Appeal No. 14/2003 dated 28.01.03, passed by the Commissioner of Central Excise (Appeals), Chennai).
For approval and signature
Honble Ms. JYOTI BALASUNDARAM, Vice President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
___________________________________________________________
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CCE, Chennai : Appellant
Vs.
M/s. Hindustan Motors Ltd. : Respondent
Appearance Shri V.V. Hariharan, JCDR, for the appellant Shri V. Balasubramanian, Adv., for the respondent CORAM Ms. JYOTI BALASUNDARAM, Vice President Dr. CHITTARANJAN SATAPATHY, Technical Member Date of hearing : 15.10.09 Date of decision : 15.10.09 Final ORDER No._____________ Per: Chittaranjan Satapathy, Heard both sides. In this case the assessment was finalized and thereafter a show cause notice was issued demanding duty on account of short levy. The lower appellate authority has held that after finalizing the assessment, the original authority had no jurisdiction to issue a show cause notice as he had become functus officio and he could not review his own order.
2. Shri V.V. Hariharan, Ld.JCDR arguing the case of the department states that the impugned show cause notice has been issued under Section 11A and as held by the Honble Supreme Court in the case of CCE, Mumbai Vs. ITC Ltd. 2006 (203) ELT 532 (S.C.), the notice under Section 11A can only be issued after finalization of provisional assessment. The Honble Supreme Court also referred to the relevant date for computation of the time period within which such notice can be issued and that in the case of provisional assessment, the relevant date is the date of finalization of the provisional assessment as provided in the law. Hence, the Ld. JCDR argues that the order passed by the lower appellate authority is erroneous and contrary to the decision of the Honble Supreme Court.
3. Shri V. Balasubramanian, Ld. Advocate appearing for the respondents states that the cross objection has been filed by the respondents as the lower appellate authority has not dealt with the merits of the case.
4. After hearing both sides and perusal of the case records including the cited decision, we find that the order of the lower appellate authority is not sustainable as his order is contrary to the law as well as contrary to the ratio of the decision of the Honble Supreme Court in the case of ITC Ltd. (supra) which has clearly held that power under Section 11A to issue a show cause notice in cases of short levy is invokable only after finalization of provisional assessment is made. Section 11A also provides that in the case of provisional assessment, the relevant date would be the date of finalization of the provisional assessment and the show cause notice can be issued within one year there from. As such, we set aside the erroneous order passed by the lower appellate authority and allow the appeal of the department.
5. The cross objection filed by the respondents is also allowed as the only grievance made therein is that the lower appellate authority decided the case without going into the merits of the case which is also the grievance of the revenue.
6. The impugned order is set aside, the appeal and cross objections are allowed with the direction that the lower appellate authority shall hear and decide the case on merits after giving reasonable opportunity for hearing to both sides.
(Operative part of the Order pronounced in the open Court on 15.10.09)
(Dr. CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE PRESIDENT
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