COMMISSIONER OF CENTRAL EXCISE, HALDIA versus M/S. KRISHNA WAX (P) LTD.

Citation: [2019] 14 S.C.R. 579 · Decided: 14-11-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

Judgment (excerpt)

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COMMISSIONER OF CENTRAL EXCISE, HALDIA
v.
M/S. KRISHNA WAX (P) LTD.
(Civil Appeal No. 8609 of 2019)
NOVEMBER 14, 2019
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Central Excise Act, 1944 – ss.3, 4, 6, 11A and 35L – Search
conducted at the registered office and the factory premises of the
Respondent by the officers of the Central Excise Commissionerate
on the basis that the Respondent manufactured Foots Oil, Pressed
Wax etc. without observing the mandatory procedure and clearing
excise duty – Writ petition filed by the Respondent inter alia objecting
that the department had no authority to proceed in the matter as
no manufacturing activity was undertaken – Direction to decide
the preliminary objection first – Show Cause Notice issued by the
office of the Commissioner of Central Excise, Haldia, inter alia
stating that after considering the preliminary objection, the
Assistant Commissioner of Central Excise decided to proceed in
the matter and called upon the respondent to show cause as to why
inter alia the amount specified in the notice be not demanded –
Respondent filed writ petition stating that the notice was issued
without deciding the preliminary objection – Direction to furnish
copy of the Internal Order dated. 15.03.2006 to the respondent
by which the preliminary objection was decided – Furnished –
Respondent filed appeal challenging the said Order – Appeal
allowed – Appellant filed appeal before the Tribunal – Dismissed
– Held: Respondent had not registered itself and was not paying
any excise duty on the products that it was manufacturing – Search
conducted led to the recovery of certain material on the basis of
which the Department was considering the matter – At that stage,
in the writ petition the order was passed directing the appellant to
decide the preliminary objection whether the Department had
jurisdiction to proceed in the matter before deciding any other issue
on merits – Provisions of the Act do not contemplate any such prima
facie determination to be arrived at and requiring that copy of such
determination be submitted to the concerned person and only
   [2019] 14 S.C.R. 579
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SUPREME COURT REPORTS
[2019] 14 S.C.R.
thereafter to proceed in the matter – Merely because the Internal
Order was communicated to the respondent, it would not afford it
a cause of action to file appeal against said Order –
Communication of Internal Order was only in obedience of the
directions issued by the High Court –Department justified in not
communicating the Internal Order on its own – It was not a decision
or determination which was arrived at in terms of s.11A(10) –
Respondent therefore could not have preferred any appeal against
said Order – Appellate Authority and the Tribunal failed to
appreciate this basic distinction – Appellate order and the order
under appeal, set aside – Proceedings pursuant to show cause
notice be taken to logical conclusion – Respondent entitled to put
in its response to said show cause notice within three weeks from
the date of this judgment and also entitled to place such material
on which it seeks to place reliance, in support of its case – Matter
shall thereafter be proceeded in accordance with law – Constitution
of India – Art.226 – Excise Duty.
Central Excise Act, 1944 – s.11A – Scheme of – Discussed.
Constitution of India – Art.226 – Jurisdiction under, in
matters relating to excise law – Held: Excise law is a complete code
in itself and writ petition should normally not be entertained
against mere issuance of show cause notice – Concerned person
must first raise all the objections before the authority who issued
show cause notice and the redressal in terms of the existing
provisions of the law could be taken resort to if an adverse order
was passed against such person – Excise Duty.
Allowing the appeal, the Court
HELD: 1. In the present case, the respondent had not
registered itself and was not paying any excise duty on the
products that it was manufacturing.  The search conducted by
the Department at the registered office and the factory premises
of the respondent led to the recovery of certain material on the
basis of which the Department was considering the matter. At
that stage, a writ petition was filed in which an order was passed
by the High Court on 28.11.2005 directing the appellant to
decide whether the Department had jurisdiction to proceed in
the matter before deciding any other issues on merits. The
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provisions

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