Patna High Court
ITC LimitedversusCommissioner of Central GST and Central Excise, Patna-I
- Decided
- Disposal
- DISMISSED
Holding
The Court held that the writ court should not interfere with the validity of the SCNs at this stage and dismissed the writ applications due to the petitioners' delay and non‑participation in the adjudicatory process.
Summary
ITC Ltd., a manufacturer of packaging materials, challenged five Show Cause Notices (SCNs) issued in 2008 that demanded differential excise duty, interest and penalty under Section 11A of the Central Excise Act. The petitioners argued that the SCNs were barred by limitation, that the department had delayed adjudication, and that the merits of the duty demand were already settled by the CESTAT order of 2023. The respondents contended that the SCNs were valid, the petitioners had repeatedly sought adjournments and failed to appear at personal hearings, and that the writ court should not interfere with the substantive tax assessment. The High Court held that the writ court could not entertain the petition on merits because the petitioners had not participated in the adjudicatory process and the delay could not be solely attributed to the department. Consequently, the Court dismissed the writ applications and directed the petitioners to approach the competent authority within four weeks.
Issues considered
- The SCNs issued in 2008 can be quashed on the ground of limitation and delay.
- Whether the High Court can interfere with the merits of the differential duty demand under Section 11A of the Central Excise Act.
- Whether the petitioners' failure to appear at personal hearings and the lapse of time bars relief in a writ of certiorari.
- Whether the writ applications are maintainable in the absence of an impugned order.
Legislation cited
- Central Excise Act, 1944 — s. 11A, 11AB, 11AC
- Central Excise (No.2) Rules, 2001 — s. Rule 25
- Central Excise Rules, 1944 — s. Rule 56A, Rule 9(2)
- Central Excise Rules, 2002 — s. Rule 173Q, Rule 4
Subjects
- Central Excise
- Show Cause Notice
- Differential Duty
- Section 11A
- Limitation
- Delay
- Laches
- Writ of Certiorari
- CESTAT
- Tax Assessment
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5664 of 2026
======================================================
ITC Limited, through its authorized representative, Virginia House, 37 JL
Nehru Road, Kolkata-700071.
... ... Petitioner/s
Versus
1. Commissioner of Central GST and Central Excise, Patna-1 3rd Floor CR
Building (Annexe), Bir Chand Patel Path, Patna-800001.
2. Assistant Commissioner, CGST and CEX Division Bhagalpur, Ground
Floor, Kiran Vatika, ShitlaSthan Road, Tilakmanjhi, Bhagalpur-812001.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 5870 of 2026
======================================================
ITC Limited through its Authorized Representative, Satya Prasad Aged about
40 yeras, Gender Male, Son of P Manamtha Rao resident of 07 Main Road
Gudari PO and PS-Gudari, Rayagada, Odisa Pincode-765026, and presently
working as Branch Manager, Patna Marketing Branch ITC Patna District
Patna.
... ... Petitioner/s
Versus
1. Commissioner of Central GST and Central Excise, Patna-I 3rd Floor CR
Building (Annexe), Bir Chand Patel Path, Patna - 800001.
2. Assistant Commissioner, CGST and CEX Division Bhagalpur Ground Floor,
Kiran Vatika, ShitlaSthan Road, Tilakmanjhi, Bhagalpur-812001.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 5962 of 2026
======================================================
ITC Limited through its Authorized Representative Satya Prasad, Aged about
40 years, Gender Male, Son of P Manamtha Rao, Resident of 07 Main Road
Gudari, PO and PS Gudari, Rayagada Odisa Pincode 765026, and presently
working as Branch Manager, Patna Marketing Brach ITC Patna, district
Patna.
... ... Petitioner/s
Versus
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
2/21
1. Commissioner of Central GST and Central Excise Patna - I, 3rd Floor CR
Building (Annexe), Bir Chand Patel Path, Patna- 800001.
2. Assistant Commissioner, CGST and CEX Division Bhagalpur Ground Floor,
Kiran Vatika, Shitla Sthan Road, Tilkamanjhi, Bhagalpur- 812001.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 5664 of 2026)
For the Petitioner/s : Ms. L. Mathili, Advocate
Mr. Sachindra Kumar Tiwary, Advocate
Ms. Nivedita R. Mehta, Advocate
Mr. Manisha Shandily, Advocate
For the CGST&CX : Mr. Anshuman Singh, Sr. SC, CGST & CX
(In Civil Writ Jurisdiction Case No. 5870 of 2026)
For the Petitioner/s : Mr. Sachindra Kumar Tiwary, Advocate
For the Respondent/s : Mr. Anshuman Singh, Sr. SC, CGST & CX
(In Civil Writ Jurisdiction Case No. 5962 of 2026)
For the Petitioner/s : Mr. Sachindra Kumar Tiwary, Advocate
For the Respondent/s : Mr. Anshuman Singh, Sr. SC, CGST & CX
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 21-04-2026
Heard Ms. L. Mathili, learned counsel for the petitioners
and Mr. Anshuman Singh, learned counsel for the Central Excise
in all the three writ applications which have been taken up together
for consideration.
2. In C.W.J.C. No. 5664 of 2026, following reliefs have
been prayed for:-
“A writ in the nature of certiorari to quash and cancel the
Show Cause Notice No. V (48) 34/B’ pur/SCN-
Cell/Adjn/2008/12868 (hereinafter referred to as the
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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‘SCN/impugned SCN’) dated 28.11.2008, SCN No. V(48)(15)35-
Adjn/2008/ 12876 dated 24.12.2025 and SCN No.
V(48)39/B'pur/SCN-Cell/Adjn/2008/ 12864 dated 28.11.2008
respectively.”
3. In other two writs, similar prayers have been made
with only difference with respect to the SCN No.
Brief Facts of the Case
4. The brief facts of the case are taken from C.W.J.C. no.
5664 of 2026. The petitioner M/s ITC Ltd. Munger is a
manufacturer of cigarettes having its factory at Munger. It
manufactures Packaging Materials like Shells, Slides; Printed
Sheets, Gold Printed Sheets, Hinged Lid Packets (HLPs) and Card
Board Outers (CBOs) also. These packaging materials are cleared
by the petitioners to its cigarette factories for captive consumption
in the manufacture of cigarettes. Both classification and valuation
of the aforesaid goods are the subject mater of dispute over last
several years. Due to dispute in classification and valuation, the
assessment during disputed period was made provisionally and
pursuant to the directions issued under various orders from time to
time, the provisional assessments for the period 1982-83 to 2004-
05 were taken up for finalization by the Deputy Commissioner of
Central Excise, Bhagalpur. The impugned order is related to
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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finalization of provisional assessment of Shells, Slides, Hinges Lid
packet etc. manufactured by M/s ITC Ltd. (PPD), Munger and as
per this order, the manufacturer- petitioners have been directed to
deposit Rs.3,99,41,490/- for disputed period.
5. This Court has noticed that in the writ applications,
there is no impugned order.
6. One of the manufacturing units of the petitioner
Company is at Basudeopur, Munger in the State of Bihar. The
petitioner obtained a Central Excise Registration vide Registration
No. AAACI 5950 L XM 012.
7. The proximate cause for filing of these writ
applications is the five notices of personal hearing served upon the
petitioners on 27/29.12.2025. These notices pertain to the five
SCNs. The details of those SCNs have been provided in paragraph
'6' of the respective writ applications.
8. It is the case of the petitioners that immediately on
receipt of the letter calling upon them to participate in the hearing,
the petitioners addressed letter dated 03.01.2026, taking a
preliminary objection saying that the adjudication of five SCNs,
which were issued 17 to 36 years prior, were barred by limitation.
It is submitted that it is not possible to respond to the SCNs due to
non-availability of the complete papers with the lapse of time.
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Submissions on behalf of the Petitioners
9. Learned counsel for the petitioners submits that the
SCNs propose to demand differential duty by invoking the
provisions of Section 11A of the Central Excise Act, 1944
(hereinafter referred to as the ‘Excise Act’) on the sole ground that
the petitioners did not provide the clarification sought for in the
letter dated 20.10.2008, issued merely a month prior to the
impugned SCNs regarding the clarifications of fulfillment of
conditions of the exemption notification in question.
10. In these writ applications, the petitioners have given
the facts leading to passing of the provisional assessment orders,
which were subject matter of challenge by the revenue as well as
the petitioners. Attention of this Court has been drawn towards the
order passed by the Deputy Commissioner, Central Excise
Division, Bhagalpur in Annexure 'P/8' to the writ application. It is
submitted that being aggrieved by the order of finalization of
assessment to the limited extent that MODVAT credit of Rs.
114.44 lacs were denied, the petitioner had moved before the
Commissioner of Central Excise (Appeals), Patna. The revenue
challenged the order of finalization only with respect to valuation
aspect. Both the appeals were disposed of vide order dated
23.01.2009 (Annexure ‘P/9’).
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11. The appeal preferred by the petitioner was partly
allowed, therefore, the petitioner challenged the order of the
Commissioner (Appeal) before the CESTAT, Kolkata. The
CESTAT, Kolkata allowed the appeal of the petitioner vide order
no. 77224/2023 dated 09.10.2023 (Annexure ‘P/10’). Thus, the
issues relating to the rate of duty and valuation stood decided as
per the modified order by the appellate authority.
12. Learned counsel for the petitioner submits that
earlier when the petitioner was served with the letters, calling upon
them to participate in the personal hearing, the petitioner
responded to letters and vide letter dated 12th May 2009 Annexure
'P/18', it was informed to the Commissioner of Central Excise and
Service Tax, Patna that a preliminary objection has been raised on
behalf of the petitioners which is required to be adjudicated. Letter
dated 16th February, 2009 written by the petitioners to the
Commissioner, Central Excise and Service Tax has been referred
to. In the said letter, the petitioner had pointed out that several
SCNs are not validly made and these are contrary to each other
and should be recalled.
It is submitted that service of notice of personal hearing
at this stage is required to be interfered with by this Court in its
writ jurisdiction on the solitary ground that after such a long time
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and inordinate delay, the competent authority cannot proceed with
the show cause notices.
13. It is further submitted that the SCNs seek to demand
differential duty of Rs. 58,55,50,768/- under Section 11A of the
Excise Act read with Rule 9 (2) of the erstwhile Central Excise
Rules 1944 and Rule 4 of the Central Excise (No. 2) rules 2001/
the Central Excise Rules 2022 along with the interest under
Section 11AB and penalty under Section 11C and Rule 173Q of
the Central Excise Rules 1944 and Rule 25 of the Central Excise
Rules 2001/2002. According to the petitioners, the proposed
demand of differential duty arises out of a unilateral denial of
exemption claimed under notification no. 67/82-C dated
28.02.1984 on the clearances of shells and slides made during the
period 28.02.1982 to 28.02.1994.
14. Learned counsel for the petitioner has requested this
Court to go into not only the grounds of delay in taking up the
adjudication process but also into the merits of the SCNs as it has
been contended that the SCNs seeking to demand differential duty
is even otherwise not sustainable.
15. In course of hearing, learned counsel for the
petitioners have relied upon the judgment of the Hon’ble Bombey
High Court in the case of GODREJ & BOYCE MFG. Co. LTD.
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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Vs. Union of India reported in (2023) 5 Centax 30 (Bom.) and on
the judgment of the Hon’ble Calcutta High Court in the case of
Surendralal Girdharilal Mehta vs. Union of India reported in
2018 (364) E.L.T. 81 (Cal.). The submission is that in both the
judgments, the Hon’ble High Court of Bombey and Hon’ble High
Court of Calcutta have been pleased to interfere with the show
cause notices and the adjudication proceedings which were
commenced after long delay. It is submitted that the competent
authority, who had issued the notices for personal hearing, is not
likely to take into consideration the pleas of the petitioners which
have been raised in this Court, therefore, this Court may invoke its
extraordinary writ jurisdiction to interfere with the show cause
notices.
Submissions on behalf of the Respondents
16. Mr. Anshuman Singh, learned counsel for the
Central Excise has submitted that the show cause notices were
issued in the year 2008 and thereafter, several dates for personal
hearing was fixed which would be evident from the
correspondences enclosed with the writ applications. Attention of
this Court has been drawn towards Annexure 'P/12' onwards. It is
submitted that in it's letter dated 31st December, 2008, the
petitioners while reading a surprise on receipt of the SCNs
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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submitted inter alia that they had forwarded the subject SCNs to
their legal counsel for advice on the subject and they would
require at least two months for collecting the necessary data and
obtain legal opinion on the subject.
17. It is pointed out that Annexure 'P/13' is a letter
granting personal hearing to the petitioners which was responded
to vide Annexure 'P/14'. In Annexure 'P/14', the petitioners pointed
out that there are some contradiction in the stand of the department
and they raised a preliminary objection that the SCNs are invalid.
Instead of participating in the hearing, they called upon the
department to provide their stand and made it clear that once the
final stand of the department is communicated in writing, they will
respond to the remaining SCNs and in absence of any such
communication, they had no obligation nor it was possible for
them to respond.
18. Learned counsel for the Central Excise submits that
Annexure 'P/14' is another letter of the department by which the
petitioners were informed that their defence reply has not been
received. It is submitted that the petitioners are, though taking a
plea of delay on the part of the department in passing a final order
on the SCNs but the fact remains that the petitioners kept on
seeking adjournment one after another. The CESTAT, Kolkata
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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order (Annexure ‘P/10’) came to be passed on 09.10.2023 only.
The petitioners have brought on record those correspondences on
their own which would show that several communications were
made to the petitioners asking them to appear. Annexure 'P/18'
which is a letter of the learned Advocate of the petitioners issued
on 12th May, 2009 has been placed before this Court to submit that
the petitioners took a stand that it would not be possible for them
to participate in the proceeding unless the preliminary objection
raised in the letter dated 16th February, 2009 is answered. A plea
was also taken by the learned counsel for the petitioners that the
date fixed for personal hearing is not suitable since on account of
court vacation the lawyer had already made travel plans much in
advance, which could not be changed.
19. Learned counsel submits that so far as the judgment
of the Hon’ble Bombay High Court in case of GODREJ &
BOYCE MFG. Co. LTD. (supra) is concerned, on a bare perusal
of paragraph nos. '5', '6' and '7' of the said Judgment, it would
appear that in the said case the petitioners had appeared before the
competent authority, attended the personal hearing before
respondent no. 3 and made their submissions. Only after the
submissions of the petitioners were rejected, they chose to move
the Hon’ble High Court in its writ jurisdiction.
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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20. It is further submitted that in case of Surendralal
Girdharilal Mehta (supra), the Hon’ble Calcutta High Court
came across the facts that there had been an inordinate delay in
proceeding with the show cause notice causing immense prejudice
to the petitioners. The authorities in the said case had failed to
disclose or supply to the petitioners' copies of the relevant
documents and in the said case, there was no fact showing that the
delay was in any way attributed to the petitioners.
21. Learned counsel for the Central Excise submits that
the Hon’ble Supreme Court has put a word of caution in the matter
of citing of their Lordship’s judgment in the case of Bharat
Petroleum Corporation vs. N.R. Vairamani and Anr.
reported in (2004) 8 SCC 579 (para ‘9’). In this regard, the
submission of Central Excise Counsel is that the facts of the
present case are clearly distinguishable. It would show that the
petitioners had not appeared despite notices for personal hearing
and kept on writing letters only and the provisional assessment
order was challenged, the litigation went on till 09.10.2023 until
CESTAT, Kolkata passed the order. Thus, delay is not solely
attributable to the department. The petitioner, who is seeking to
invoke the extraordinary jurisdiction of this Court, may not be
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entitled to the discretionary relief of this Court where it is shown
that the petitioner has tried at every stage to avoid the hearing.
22. Learned counsel for the Central Excise has relied
upon the judgment of the Hon’ble Supreme Court in the Case of J.
Sri Nisha Vs. Special Director, Adjudicating Authority,
Directorate of Enforcement (2026 INSC 309) which was a case
in which a writ petition was filed by the appellants assailing the
show cause notices issued by the Adjudicating Authority under the
provisions of the Foreign Exchange Management Act, 1999 (in
short referred to as FEMA). The learned Single Judge dismissed
the writ petition and an Intra Court appeal preferred against the
said single judge judgment also failed. Learned counsel submits
that in the said case, when the matter travelled to the Hon’ble
Supreme Court, the Hon’ble Supreme Court has, upon discussion
and analysis of the facts and the statutory framework governing
the dispute, in paragraph '32', observed inter alia that interference
at the stage of SCN is permissible only in exceptional
circumstances, such as, where the notice suffers from patent lack
of jurisdiction, reflects non-application of mind and issued with a
pre-determined or pre-meditated approach. In such circumstances,
the High Court would be justified in exercising its jurisdiction
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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under Article 226 of the Constitution of India. It is his submission
that in the present case, no such ground has been made out.
23. So far as the other contentions of learned counsel for
the petitioners is concerned, it is submitted that it would not be an
appropriate stage for this Court to go into the case of the
department as shown in the show cause notices. Learned counsel
submits that this Court sitting in its writ jurisdiction may not like
to delve into the issues as to whether the SCNs demanding
differential duty is contrary to the provisions of the Act and the
Rules. The issues relating to the proposed demand of differential
duty may be left to be decided by the competent authority only.
The petitioner may submit their stand before the competent
authority on all such grounds which are available to them.
Consideration
24. Having heard learned counsel for the petitioner(s)
and learned counsel for the Central Excise as also on going
through the pleadings available in the writ applications, we have
noticed that in this case, the petitioners are seeking quashing of the
SCNs of five years which were served upon the petitioners
admittedly in the year 2008.
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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25. This Court would, therefore, extract the show cause
notice present at Annexure ‘P/11’ (page 106 of the writ petition) as
under:-
"भारत सरकार
केनद्रीय उतपाद शु लक एवं से वा कर आयु कतालय , पटना
तृ तीय मं जजल, केनद्रीय राजसव सं लगनक भवन, वीर चनद पटे ल पथ,
पटना-800001
C.No. V (48) 39/B Pur/SCN-Cell/Adjn/2008/12864
To
M/s I.T.C. Ltd.,
(Printing & Packaging Division),
Basudeopur,
Munger- 811201 (Bihar)
Notice to Show Cause for Demand-cum-Interest-cum-
Penalty under Sections 11A, 11AB, 11AC of the Central
Excise Act, 1944
Whereas it appears that M/s I.T.C. Ltd., (Printing & Packaging
Business Division), Basudeopur, Munger [hereinafter referred
to as the said Assessee, for brevity] having Central Excise
Registration No. AAACI 5950 L XM 012, engaged in the
manufacture of excisable goods, namely, Shells, Slides,
Hinged Lid Pack, etc. from Paper or Paper Board and CBO
falling presently under different Chapter Heading No. 48 of
the Central Excise Tariff Act, 1985 (hereinafter referred to as
the said Tariff Act, for brevity) and then falling under T. I No.
17 (4) before introduction of the said Tariff Act, have
contravened the provisions of the erstwhile Notification No.
67/ 82-C.E., dated 28.02.1982 (as amended) and the
Notification No. 135/ 89-C.E., dated 12.05.1989 (as
amended), as they have availed the benefit of exemption for
payment of Duty at concessional rate for clearances of Shells,
Slides, Hinged Lid Pack, etc., without fulfilling the Conditions
laid down under the above said Notifications.
2. During the course of the finalization of the Provisional
Assessment, Shells & Slides, Hinged Lid Pack etc. have been
classified under the T. I. No. 17 (4) during the period from
1982 to 27.02.1986 (before the introduction of the new Tariff
Act). After introduction of the said Tariff Act, these products
have been classified under the Chapter sub-Heading No.
4818.90 w.e.f. 28.02.1986 to 29.02.1988 and under the
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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Chapter sub-Heading No. 4823.90 w.e.f. 01.03.1988 onwards.
At the time of the finalization of the Provisional Assessment
the said Noticee were requested to calculate Duty amount at
the applicable rate of Duty supported with the Notification, if
any, regarding effective rate of Duty. The said Noticee claimed
benefit for concessional rate of Duty for the items classifiable
under the T. I. 17 (4) and under Chapter 48 and in support of
their claim they submitted different effective rate Notifications
as applicable from time to time. The Provisional Assessment
for Chapter 48 items has been finalized quantifying and
demanding the Central Excise Duty amounting to
Rs.2,98,14,009.96 (Rupees two crore ninty eight lakh fourteen
thousand nine & ninety six paise only) considering these
effective rate notifications.
3. Notification No. 67/ 82- C.E., dated 28.02.1982 (as
amended) and Notification No. 135/89- C.E., dated
12.05.1989 (as amended), from time to time, have been taken
into consideration while finalizing the Provisional
Assessment. These notifications were applicable subject to the
full-fillment of certain Conditions laid down therein.
4. Vide the Notification No. 67/82- C.E., dated 28.02.1982 as
amended by Notification No. 48/83- C.E., dated 01.03.1983,
Notification No. 151/83- C.E., dated 13.05.1983 and
Notification No. 79/86- C.E., dated 10.02.1986, articles of
Paper or Paper Board falling under the erstwhile T. I. No. 17
(4) of the first schedule to the Central Excise & Salt Act 1944,
and now Chapter 48 of the Schedule of the said Tariff Act, had
been the exempted from Duty of Excise leviable thereon as
was in excess of 15% ad-valorem subject to the conditions:
(a) that appropriate Duty of Excise or additional Duty leviable
thereon under Section 3 of the Customs Tariff Act, 1975, as
the case may be, has already been paid in respect of the Base
Paper or Base Paper Board in their manufacture.
(b) that the manufacturer does not avail the special procedure
prescribed under Rule 56A of Central Excise Rules, 1944
(hereinafter referred to as the said earstwhile Rules, for
bravity) in respect of Duty paid in the Base Paper or Base
Paper Board.
Thus, it is clear that only when the above two Conditions are
satisfied 15% of ad-valorem rate of Duty on these items are
applicable.
5. Vide the Notification No. 135/89 C.E., dated 12.05.1989 as
amended by Notification No. 30/ 93- C.E., dated 28 02.1993;
Notification No. 20/94- C.E., dated 01.03.1994, Notification
No 18/95- C.E., dated 16.03.1995 and Notification No 19/96-
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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C.E., dated 23.07.1996, goods falling under the Chapter sub-
Heading No. 4823.90 of the Schedule to the said Tariff Act,
other than the products consisting of sheets of Paper or Paper
Board impregnated, coated or covered with plastics,
compressed together in one or more operations, had been
exempted from Duty of Excise leviable theroon as was in
excess of the amount calculated @ 12% ad-valorem. This
effective rate Notification excludes the products consisting of
sheets of Paper or Paper Board impregnated, coated or
covered with plastics, compressed together in one or more
operations.
6. The said Noticee were asked vide the letter C. No. V (24)
25- Tech/ BGP/08/3026 dated 20.10.2008 to submit the
following clarifications in respect of raw materials, i.e., Paper
or Paper Board used for the manufacture of Shells, Slides,
HLP, etc. for the purpose of verifying whether the specific
conditions laid down under the Notification No. 67/82-C.E.,
dated 28.02.1982, as amended and the Notification No.
135/89- C.E., dated 12.05.1989, amended, have been fulfilled
by the said Noticee:
(a) Whether they had manufactured Shells, Slides, etc.
classifiable under the said Tariff Item no. 17 (4) for the period
1982 to 27.02.1986 from Duty paid paper or paper boards and
if so, documentary evidences such as Invoices in respect of
Paper or Paper Board showing Duty paying particulars be
furnished.
(b) Whether they had not availed the special procedure under
Rule 56 A of the said erstwhile Rules during the above
mentioned period.
(c) Whether products, i.e., Shells, Slides, HLP, etc.,
manufactured by them and classifiable under Chapter 48 after
28.02.1986, consists of sheets of Paper or Paper Board
impregnated, coated or covered with plastics, compress
together in one or more operations.
7. The said Noticee have not submitted any clarifications as
yet. Thus, it appears that the said Noticee have mislead and
suppressed the correct rate of Excise Duty by claiming the
benefit of above mentioned effective rate notification without
fulfilling the specific conditions laid down therein and thus the
said Noticee are not eligible for availing exemptions for
effective rate Notification and are thus required to pay Duty at
the Tariff rate as applicable from time-to-time.
8. Therefore, the said Noticee is hereby called upon to show
cause to the Commissioner, Central Excise & Service Tax,
Patna [having his office situated at the 3rd Floor, Central
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Revenue Annexee Building, Bir Chand Patel Path, Patna-800
001], within thirty (30) days of the receipt of this Notice as to
why:
(a) The aforesaid short paid Central Excise Duty amounting to
Rs.56,65,16,566/-(Rupees Fifty-six crores, sixty-five lakhs,
sixteen thousands, five hundred and sixty-six only) [as
detailed in the Annexure- ‘A’] should not be demanded and
recovered from them under the provisions of Section 11A of
the Central Excise Act, 1944 read with Rule 9 (2) of the
erstwhile Central Excise Rules, 1944 and now Rule 4 of the
Central Excise Rules, 2002.
(b) The Interest amount, at the appropriate rate, on the said
amount, should not be charged and recovered from them,
under the provisions of Section 11AB of the Central Excise
Act, 1944.
(c) Penalty should not be imposed upon and recovered from
them under the provisions of Section 11AC of the said Central
Excise Act, 1944 and Rule 173Q of the erstwhile Central
Excise Rules, 1944 or, as the case may be, Rule 25 of the
Central Excise (No. 2) Rules, 2001/Central Excise Rules,
2002.
9. The said Noticee is further directed to produce all evidences
upon which they intend to rely upon in support of their
defence. The said Noticee is further required to state as to
whether they would like to be heard in person, before the case
is adjudicated. If no mention of Personal Hearing is made in
their written explanation, it would be presumed that they do
not desire the same. If no cause is shown against the action
proposed to be taken within the stipulated period or they do
not appear before the Adjudicating Authority, when the case is
posted for hearing, the case will be decided on the basis of the
evidences and materials on record.
10. This Notice is issued without prejudice to any other action
that may be taken against the said Noticee under the Central
Excise Act, 1944 or the Rules made there under or under any
other Law for the time being in force in India.
Enclo: As above.
[M.S. BADHANI],
COMMISSIONER”
26. Since the year 2008, the petitioner did not challenge
the SCNs before any competent court/forum. After 18 years
thereof, the petitioners are approaching this Court for issuance of
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
18/21
an extraordinary writ in the nature of a writ of certiorari to quash
and cancel the SCNs. The delay and laches on the part of the
petitioner in filing of the writ application is apparent on the face of
it.
27. We have noticed the contention of learned counsel
for the petitioner(s) that the SCNs pertain to the period which are
nearly 17 years old. But the fact remains that after receipt of
SCNs, the petitioner was given opportunity to respond and the
respondent fixed several dates for hearing. For one reason or
another, the petitioner did not participate in the hearing. In such
circumstances, prima facie, we agree with the submissions of the
learned counsel for the Central Excise that the delay in the
adjudication cannot be solely attributed to the department.
28. Although, the learned counsel for the petitioner has
invited this Court to enter into the merit of the show cause notices
on the ground that the show cause notices are demanding
differential duty which are not sustainable as the issues have been
settled by the order passed by the CESTAT, Kolkata, the facts
remain that CESTAT, Kolkata order (Annexure ‘P/10’) is dated
09.10.2023 and the submission of the petitioner is required to be
considered by the competent authority at first instance.
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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29. We are of the considered opinion that this Court
being a Writ Court need not enter into the validity of the SCNs at
this stage as certain issues of facts are required to be gone into
with reference to the materials which may be placed before the
competent authority. It would be in the domain of the competent
authority to examine those documents, adjudicate the facts and
then apply the law in the facts of the case. This Court would,
therefore, refrain from entering into the merit of the contentions
with regard to the demand as proposed in the SCNs.
30. We have gone through the judgments of the Hon’ble
Bombay High Court and the Hon’ble Calcutta High Court. We are
reminded of the judgment of the Hon’ble Supreme Court in case of
Bharat Petroleum Corporation (supra). Paragraph '9' thereof
reads as under:-
"9. Courts should not place reliance on decisions
without discussing as to how the factual situation fits
in with the fact situation of the decision on which
reliance is placed. Observations of courts are neither
to be read as Euclid's theorems nor as provisions of a
statute and that too taken out of their context. These
observations must be read in the context in which
they appear to have been stated. Judgments of courts
are not to be construed as statutes. To interpret
words, phrases and provisions of a statute, it may
become necessary for judges to embark into lengthy
discussions but the discussion is meant to explain
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
20/21
and not to define. Judges interpret statutes, they do
not interpret judgments. They interpret words of
statutes; their words are not to be interpreted as
statutes. In London Graving Dock Co. Ltd. v.
Horton2 (AC at p. 761) Lord MacDermott observed :
(All ER p. 14 C-D)
“The matter cannot, of course, be settled merely by
treating the ipsissima verba of Willes, J., as though
they were part of an Act of Parliament and applying
the rules of interpretation appropriate thereto. This is
not to detract from the great weight to be given to
the language actually used by that most
distinguished judge,…””
31. It is apparent from a bare reading of the facts of the
two judgments cited at the Bar that those have been rendered in
completely different facts. In the case of Bombay High Court, the
petitioners had participated in hearing whereafter an adjudicatory
order was passed by the competent authority which was under
challenge. This Court does not have that privilege because the
petitioner has yet not appeared before the competent authority to
participate in the personal hearing. In the case before the Hon’ble
Calcutta High Court, the facts were completely different. The
petitioners in the said case had requested the department to supply
certain documents but those were not supplied. That was not the
case in which date of personal hearing was fixed by the
department.
2. 1951 AC 737 : (1951) 2 All ER 1 (HL)
Patna High Court CWJC No.5664 of 2026 dt.21-04-2026
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32. In our considered opinion, the writ applications as
framed cannot be entertained. The petitioner(s), if so advised, may
appear before the competent authority within four weeks from
today and make their submissions. All submissions are left open to
the parties.
33. It is, however, made clear that this Court has not
entered into merit of the case and no part of the observations of
this Court shall prejudice either of the parties.
34. These writ applications stand dismissed.
(Rajeev Ranjan Prasad, J)
( Soni Shrivastava, J)
devendra/-
AFR/NAFR
CAV DATE N/A
Uploading Date 25.04.2026
Transmission Date 25.04.2026
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