Punjab-Haryana High Court
M/S Dee Kay Exports vs Union Of India & Another on 26 October, 2010
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel, Ajay Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No.8568 of 2010
Date of decision: 26.10.2010
M/s Dee Kay Exports.
-----Petitioner.
Vs.
Union of India & another.
-----Respondents
CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
Present:- Mr. Jagmohan Bansal, Advocate and
Mr. Vishav Bharti, Advocate
for the petitioner.
Mr. H.P.S. Ghuman, Standing Counsel
for respondents.
---
ADARSH KUMAR GOEL, J.
1. This petition seeks quashing of Show Cause Notice dated 19.2.2010, Annexure P-5, under Section 11A of the Central Excise Act, 1944 (for short, "the Act"), requiring the petitioner to show cause why the demand of duty may not be raised with interest and why penalty be not levied for alleged wrongful availment of CENVAT Credit on inputs/input services.
2. Grievance of the petitioner is that identical Show Cause Notice dated 4.2.2008 was earlier issued to the petitioner, which was contested by the petitioner and after due consideration of stand of the petitioner, the said notice was dropped vide order CWP No.8568 of 2010 2 in original dated 29.10.2009. Plea of the petitioner that CENVAT Credit on inputs/input services had not been wrongfully availed, was upheld. The finding recorded is as under:-
"3.2 The noticee in their reply have submitted that they have not availed any cenvat credit of duty paid on inputs / input services for the manufacture of agricultural grade ZnSO4. Verification report was sought from Range Superintendent Assistant Commissioner, CX Division, Yamuna Nagar and Assistant Commissioner, CX Division, Yamuna Nagar vide letter C.No.V(28)Demand/DK/YNR/01/2008/4320 dt. 01.10.09 has confirmed and forwarded the verification report of Range Officer vide his letter dt. 25.09.09 stating that the noticee had not availed any cenvat credit of duty paid on inputs/input services for manufacture of zinc sulphate and that question of payment of amount equivalent to cenvat credit availed does not arise."
Once the matter has been finalised with above finding, the adjudicating authority had no jurisdiction to issue a fresh Show Cause Notice in the same matter.
3. In the reply filed, stand taken is that after passing of the order, in original, it came to the notice of the department that the noticee had misrepresented/suppressed the material facts relating to availment of CENVAT Credit and in such a situation, second Show Cause Notice by same authority was justified.
4. We have heard learned counsel for the parties. CWP No.8568 of 2010 3
5. Learned counsel for the petitioner submitted that once the matter has been finalised on merits, the adjudicating authority had no jurisdiction to initiate proceedings in the same matter without a provision to that effect in the Act. As per statutory Scheme, only remedy of the department against an alleged erroneous order of adjudicating authority is to invoke power under Section 35E(2) of the Act. Reliance has been placed on following judgments:-
i) Union of India v. Vicco Laboratories 2007 [218] ELT 647 (SC);
ii) M/s Twenty First Century Steels (P) Ltd. v. CCE C.W.P. No.1991 of 2009 decided on 17.3.2009 (P&H);
iii) Jai Hind Oil Mills & Co. v. Union of India 1994[71] ELT 902 (Bom);
iv) Associated Cement Companies Ltd. v. Union of India 1996 [88] ELT 348 (Kar) and
v) Rewa Gases Pvt. Ltd. v. Assistant Collector of C.Ex., Satna 2002[140] ELT 18 (M.P.).
6. Learned counsel for the respondents has not been able to show any provision in the Act under which the issue could be reopened by the same authority by way of second Show Cause Notice. He has not been able to dispute the applicability of judgments relied upon on behalf of the petitioner. CWP No.8568 of 2010 4
7. Accordingly, this writ petition is allowed and notice dated 19.2.2010, Annexure P-5, is quashed.
8. It is, however, made clear that the respondents will be at liberty to take such other proceedings in the matter as may be permissible under the law.
(ADARSH KUMAR GOEL)
JUDGE
October 26, 2010 ( AJAY KUMAR MITTAL )
ashwani JUDGE