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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
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PJ/Case Laws/2012-13/1370

Whether issuance of second SCN regarding recovery of dues and penalty before adjudicating the first SCN regarding confiscation of goods legal?

Case:-JAY KUMAR LOHANI Versus COMMISSIONER OF CENTRAL EXCISE, INDORE
 
Citation:-2012 (28) S.T.R. 350 (M.P.)
 
Issue:- Whether issuance of second SCN regarding recovery of dues and penalty before adjudicating the first SCN regarding confiscation of goods legal?
 
Brief facts:-By this petition under Article 226/227 of the Constitution of India, the petitioners have challenged the show cause notice dated 6-1-2012 issued by the first respondent Commissioner invoking provisions of Section 11A of the Central Excise Act, 1944 (for short, the Act). By the impugned notice, the petitioners have been asked to show cause as to why excise duty and penalty as mentioned in the said notice should not be jointly and severally demanded and recovered from them by invoking extended period of 5 years.
According to the petitioners, prior to issuance of the impugned show cause notice the respondents had issued a notice dated 19-8-2011 on the basis of the same allegations which have been levelled in the impugned notice, calling upon the petitioners to show cause as to why the goods seized (branded manufactured tobacco, branded roasted cut supari and unbranded roasted cut supari) be not confiscated and penalty for the same be not imposed. It is stated by the petitioners that a reply to the said earlier show cause notice dated 19-8-2011 was submitted by them on 21-11-2011 and before taking any decision in respect of the said earlier show cause notice, by pre-judging the issue involved in the matter the Commissioner Central Excise has issued the impugned show cause notice dated 6-1-2012 about recovery of duty and penalty.
 
Appellant’s contention:- The learned counsel for theappellant contended that the Commissioner has pre-judged the issue and therefore, submission of reply to the impugned show cause notice would be futile. In the circumstances he submitted that the interference at the stage of show cause notice is called for and the reliefs claimed in the petition deserves to be granted. In support, he placed reliance on the judgment passed by High Court of Madras in the case of Madurai Metal Industries v. Union of India [1991 (52) E.L.T. 495 (Mad.)] and on the judgment passed by the Supreme Court in the case of ORYX Fisheries Private Limited v. Union of India [2011 (266) E.L.T. 422 (S.C.)]. He submitted that either the show cause notice be quashed or an order be passed prohibiting the Commissioner from proceeding further with the impugned show cause notice till the final adjudication of the question involved in earlier show cause notice which is regarding validity of the seizure, the proposed confiscation and the excisability of the goods in question. The petitioners also placed reliance on the judgment of Padmini Products v. Collector of Central Excise [1989 (43) E.L.T. 195 (S.C.)] in which the question as to whether the provision of extended period of 5 years is applicable to the petitioners’ case or not can be very well raised.
 
Respondent’s contention:- The respondent placed reliance on the decision given by theSupreme Court in the case of Standard Chartered Bank & Ors. v. Directorate of Enforcement & Ors. (AIR 2006 SC 13011 = 2006 (197)E.L.T. 18 (S.C.)
 
Reasoning of judgment:-The contention raised by learned counsel for the petitioners that before deciding the objections raised in reply to the earlier show cause notice dated 19-8-2011, the impugned show cause notice dated 6-1-2012 could not have been issued by the first respondent is wholly misconceived. Learned counsel for the petitioners could not point out any legal provision requiring the authorities to first adjudicate the notice issued regarding confiscation and then only they could have issued the impugned show cause notice regarding recovery of dues and penalty. In the circumstances, having regard to the fact that it is not a case of prejudging of the issue and that it is not a case of the show cause notice being without jurisdiction, we find no case for making interference in the show cause notice. It is very clear from the impugned show cause notice dated 6-1-2012 that only a prima facie view has been expressed in regard to the allegations about wilful suppression of the facts of manufacture and clearance of branded manufactured tobacco and roasted cut Supari. In the circumstances the show cause notice which has been challenged in this petition cannot be labelled to have been issued after pre-judging the question involved in the matter. Therefore, the judgments on which reliance has been placed by the learned counsel for the petitioners are of no help to the petitioners as the language employed in those show cause notices is quite different from the impugned show cause notice.
It was further held that the petitioners can put forward their representations against the impugned show cause notice before the Commissioner and it is for the Commissioner to decide the relevant aspects while deciding whether to impose or not to impose the duty and penalty on the petitioners. It is also clear from the scheme of the Act that after the decision being taken by the Commissioner, it is appealable before the authorities established under the Act. Having regards to this, we see no justification for issue of a writ of prohibition restraining the authority from proceeding further with the impugned show cause notice. As observed it is for the petitioners to put forward their defenses as may be available to them before the Commissioner and pursue him in accordance with law.
In the circumstances, having regard to the fact that it is not a case of prejudging of the issue and that it is not a case of the show cause notice being without jurisdiction, we find no case for making interference in the show cause notice. Accordingly, the writ petition is hereby dismissed.
 
Decision:-Petition dismissed
 
Comment:-The analogy drawn from this case is that when it is not ascertainable from the language of the show cause notice that the issuing authority has pre-judged the issue, the issuing authority cannot be prohibited from proceeding further in the case. The appellant had misconceived the facts and applied for writ petition wherein there was no provision in law in respect of appellant’s contentions.

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