Allahabad High Court
M/S Lifetime Interexpo Pvt. Ltd. vs Union Of India & Others on 28 April, 2014
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 34
Case :- WRIT TAX No. - 875 of 2011
Petitioner :- M/S Lifetime Interexpo Pvt. Ltd.
Respondent :- Union Of India & Others
Counsel for Petitioner :- Udit Chandra
Counsel for Respondent :- A. S. G. I.,Ashok Singh
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Udit Chandra, learned counsel for the petitioner and Sri Siddharth Shukla, Advocate for respondents.
2. The petitioner claimed rebate of Central Excise Duty on alleged export of certain goods. The Assistant Commissioner, Customs and Central Excise, Agra (hereinafter referred to as the "A.C., C.C.E.") issued show cause notice dated 11.11.2005 stating that on scrutiny of petitioner's rebate claim it has been found that description of goods in invoice No. 27 dated 19.06.2005 and in ARE-I No./7/2005-06 do not match and excise duty which was payable was not paid in all four invoices and, therefore, it appears that claim of petitioner was not genuine.
3. Petitioner submitted reply dated 16.11.2005 and thereafter the A.C., C.C.E. passed order dated 16.12.2005 finding that description of goods do not tally and even the gross weight and net weight of goods shown in ARE-I and shipping bills also do not tally. It thus rejected rebate claim of petitioner for Rs. 4,17,058/-. Thereagainst petitioner preferred appeal wherein also the Appellate Authority found that description of goods did not tally. Similarly on the question of gross weight and net weight difference, petitioner could not explain the same and, therefore, it also dismissed appeal vide order dated 29.08.2006 and confirmed the order of A.C., C.C.E. and petitioner's revision has also been rejected vide order dated 05.06.2009.
4. Learned counsel for the petitioner submitted that the grounds mentioned in show cause notice have been widened in passing the impugned orders and his claim has been rejected on certain grounds not stated in show cause notice. He placed reliance on Commissioner of Central Excise, Chandigarh Vs. M/s Shital International, AIR 2010 SCW 6835; Commissioner of Customs, Mumbai Vs. M/s Toyo Engineering India Ltd., AIR 2006 SCW 5167; Madhav Steel Vs. Union of India and others, Writ Petition No. 2706 of 2006, decided on 10.08.2010; Formica India Division Vs. Collector of Central Excise and others, 1995 Supp.(3) SCC 552; Commissioner of Central Excise, New Delhi Vs. M/s Hari Chand Shri Gopal and others, 2011 AIR SCW 1119; and, Kusheshwar Prasad Singh Vs. State of Bihar and others, 2007(11) SCC 447.
5. However, I find that so far as description of goods do not tally in invoice no. 27 and ARE-I are concerned, it was mentioned in show cause notice and has consistently been found correct. The petitioner could not give any explanation in this regard. Similarly, for the purpose of difference of weights, the details have been discussed in the order of A.C., C.C.E. and petitioner got opportunity even before Appellate Authority but could not explain the same satisfactorily. The difference could not be explained even before this Court.
6. Mismatch of goods mentioned in invoices and AREs is one of the ground taken by A.C., C.C.E. It is true that A.C., C.C.E. has referred to such dispatch only in respect of invoice No. 27 and ARE-I No./7/2005-06 but the Appellate Authority has considered on this aspect in respect to other invoices also as is evident from paras 10, 11 and 12 of the judgment and he has found that goods do not match not only in respect of invoice No. 27 but invoice No. 30 also and in respect of invoice No. 28 he found that gross weight and net weight of goods shown do not tally. This very defect has has also found in respect to invoice No. 30. In the revision preferred by petitioner the above findings recorded by Appellate Authority could not be shown perverse or contrary to material on record.
7. In view thereof, I also do not find any justification to interfere with aforesaid findings of facts.
8. Coming to the decisions cited at Bar on behalf of petitioner, I find that in Commissioner of Central Excise, Chandigarh Vs. M/s Shital International (supra) the court found that notice issued to assessee-company did not mention any of the ingredients required to substantiate the charge which may justify rejection of his stand and levy of CENVAT and other duty additionally.
9. In Commissioner of Customs, Mumbai Vs. M/s Toyo Engineering India Ltd. (supra) the Revenue sought to raise certain issues for the first time in second appeal before Tribunal though these issues were never raised commencing from show cause notice, initial order passed by Assessing Authority and in the first appeal. It is in these circumstances, the Court observed that department cannot travel beyond the show cause notice and even in the grounds of appeal these points are not taken but that is not the case herein.
10. Similar was the case in Formica India Division Vs. Collector of Central Excise (supra) where the Revenue intended to raise an issue for the first time before High Court which was held impermissible by Apex Court. Similarly, other decisions are also do not help petitioner, in my view, the issue raised in this matter.
11. I, therefore, do not find any reason to interfere with the impugned orders.
12. The writ petition lacks merit. Dismissed. Interim order, if any, stands vacated.
Order Date :- 28.04.2014
AK
