IMPORTANT POINTS
Petition under Article 226 should not have been entertained against show cause notice.
Communication under orders of High Court does not give a cause of action to file appeal.

JUDGMENT :

UDAY UMESH LALIT, J.

1. This Appeal under Section 35L of the Central Excise Act, 1944 (‘the Act’, for short) arises out of Order dated 31.05.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata (‘the Tribunal’, for short) dismissing Appeal No. E/211/07 preferred by the Appellant herein.

2. The facts leading to the filing of this Appeal, in brief, are as under:-

(a) On 23.09.2005 a search was conducted at the registered office as well as the factory premises of the Respondent herein by the officers of the Central Excise Commissionerate on the basis that the Respondent manufactured Foots Oil, Pressed Wax, Pressed Paraffin Wax without observing the mandatory procedure and clearing Excise Duty. Soon thereafter, Writ Petition No. 2073 of 2005 was filed by the Respondent before the High Court [High Court of Judicature at Calcutta] submitting inter alia that the Assistant Commissioner of Central Excise had no authority to proceed in the matter as no manufacturing activity was undertaken by the Respondent. The High Court by Order dated 28.11.2005 directed as under:-

“Having heard the Learned Advocates appearing for the parties and considering the facts and circumstances of the case, I dispose of this petition by directing the respondent No.1 to decide the preliminary objection raised on behalf of the petitioners regarding the jurisdiction of the respondents to proceed in the matter under Central Excise Act before deciding any other issues in this matter on merit.

Since no affidavit in opposition has been used on behalf of the respondents, all allegations levelled against the said respondents in this writ petition should not be deemed to be admitted.”

(b) On 21.03.2006 a Show Cause Notice was issued by the office of the Commissioner of Central Excise, Haldia, which stated inter alia that in terms of the aforesaid directions of the High Court, the Assistant Commissioner of Central Excise had considered the preliminary objection and decided to proceed in the matter. It further recited that from the facts available on record it appeared that manufacturing activity was being undertaken by the Respondent without following due procedure and without paying any Excise Duty. It was observed:-

“Whereas M/s. Krishna Wax (Pvt.) Ltd., having their Registered Office at Classic Tower, 10A & 11A Floor, 56 Gariahat Road, Kolkata, had filed a writ petition (No.2073 of 2005) in High Court at Calcutta and obtained an order, whereby the respondent, namely, Assistant Commissioner of Central Excise, was to decide preliminary objection regarding jurisdiction to proceed in the matter under Central Excise Act on merit and it appears to the respondent that the matter can be proceeded with under Central Excise Act and whereas it appears from the facts mentioned below that M/s. Krishna Was Private Ltd. having their manufacturing unit at…..”

After the aforesaid opening recitals, the facts were considered and finally the Respondent was called upon to show cause :

“(i) Why the Central Excise Duty of Rs.1,56,31,712.00 (rupees one crore fifty six lakhs thirty one thousand seven hundred and twelve only) Education Cess of Rs.2,11,007.00 (rupees two lakhs eleven thousand and seven only as detailed in Annexure-A) should not be demanded and recovered under the extended proviso to Section 11A of the said Act?

(ii) Why interest as applicable at the appropriate rate should not charged under Section 11 AB of the said Act?

3.6. The “said party” is directed to produce all the evidence upon which they intend to rely in support of his defense, when the case will be heard before the Adjudicating Authority.

3.7 The “said party” should also inform whether they wish to be heard in person or through authorized representative when the case will be posted for hearing.”

(c) The Respondent again approached the High Court by filing Writ Petition No. 1719 of 2006,