- (1.) WE have heard Shri V.K. Upadhyay, learned Senior Counsel assisted by Shri Nishant Mishra for the petitioners. Shri Vinod Kant Srivastava has accepted notice on behalf of the respondents. The petitioner No. 1 is a partnership firm engaged in manufacturing of 'Branded Chewing Tobacco'. The petitioner No. 2 is the partner of petitioner No. 1 firm. Branded Chewing Tobacco is classified under Chapter 2403.9910 of the Central Excise Tariff Act, 1985.
(2.) IN this writ petition the petitioner is aggrieved by the demand -cum -show cause notice issued by the office of the Commissioner, Customs, Central Excise and Service Tax, Kanpur proposing to impose Central Excise Duty, penalty and interest. The notice also proposed as to why the penalty be not imposed under Rule 26 of the Central Excise Rules, 2002 for the reasons discussed in the notice. The operative portion of the notice requires the petitioner to produce all the relevant evidence upon which they intend to rely in their support and to state in their written explanation whether they wish to be heard in person before case is adjudicated. Learned counsel appearing for the Central Excise Department submits that the writ petition is not ordinarily maintainable against demand -cum -show cause notice. The petitioner will have sufficient opportunities, to establish that he is not liable to pay excise duty and penalty as demanded from him. It is submitted that the petitioner did not cooperate in the enquiry with the Adjudicating Officer and thus he should not be allowed to be heard on the evidence and issues, which he could have raised before the adjudicating authority.
(3.) SHRI V.K. Upadhyay, learned Senior Counsel submits that the show cause notice suffers from gross error of facts, which constitute jurisdictional error and of the provisions of law. He is as whole [saler] entitled to avail benefit as a whole [saler] selling branded tobacco in dibbis (boxes) of the quantities, which are less than 10 gram, and for which there is an exemption to give the maximum retail price (MRP) on the packing. He has relied on Jayanti Food Processing (P) Ltd. v. Commissioner of C. Ex., Rajasthan, , 2007 (215) E.L.T. 327 (S.C.). Shri V.K. Upadhyay has also relied on the judgment of Supreme Court in Siemens Ltd. v. State of Maharashtra, : 2007 (207) E.L.T. 168 (S.C.) : 2007 (5) S.T.R. 3 (S.C.) and Union of India v. Hindalco Industries, : 2003 (153) E.L.T. 481 (S.C.) and Jagran Prakashan Ltd. v. Deputy Commissioner of Income Tax (TDS), : (2012) 345 ITR 288 (All.) in a matter arising from income tax in support of his submission.;