Rajiv Shakdher JUDGMENT
Rajiv Shakdher, J.
1. A Division Bench of this Court vide its order dated 12.05.2000 referred the captioned case to a Larger Bench for adjudication of two issues:
(i) The applicability of Section 11A of the Central Excise and Salt Act, 1944 (in short the Act.) before and after the final order of assessment was passed.
(ii) The applicability of the judgment of the Supreme Court rendered in the case of Serai Kella Glass Works Pvt. Ltd. v. C.C.E, Patna MANU/SC/0468/1997 : 1997 (91) ELT 497 (SC), more particularly, paragraph 18 of the said judgment to the instant case.
2. The occasion for reference to a larger bench arose in view of the judgments of two separate Division Benches of this Court taking diametrically opposite views with respect to the issue as to whether a show cause notice, under the provisions of Section 11A of the Act could be issued, pending final assessment of a show cause notice, issued prior in point of time.
2.1 In the case of International Computers Indian Manufacturers Ltd. v. Union of India 1981 ELT 632 (Del); the Division Bench held that a show cause notice under Section 28 of the Customs Act, 1962, (which is analogous to Section 11A of the Act), could not be issued, while a provisional assessment was pending finalisation. However, in Duncans Agro Industries v. Union of India MANU/DE/0063/1988 : 1989 (39) ELT 511, another Division Bench held to the contrary. Fortuitously, the evidently disparate views stand reconciled by virtue of a judgment of the Supreme Court in the writ petitioner's own case, i.e., Commissioner of Central Excise, Mumbai v. ITC Ltd. MANU/SC/4842/2006 : 2006 (203) ELT 532.
3. The issue in principle is no longer res integra. A show cause notice under Section 11A of the Act cannot be issued during the pendency of assessment proceedings. This is quite clear from the poser of the Supreme Court in the very opening paragraph of its judgment in the case of ITC Ltd. (supra), and the observations made in paragraph 17 thereof. Being relevant, the same are extracted hereinbelow:
Completion of an assessment proceedings whether is a sine qua non for issuance of notice under Section 11A of the Central Excise Act, 1944 (for short 'The Act') is the question involved in this appeal which arises of a judgment and order dated 18.06.2004 as modified by an order dated 02........