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2020 ] HONDA SIEL POWER PRODUCTS v. UNION OF INDIA 33

11. In case of CCE and C, Tirupati v. Panyam Cements and Minerals Indus-
tries Ltd. - 1997 (331) E.L.T. 206 (AP), the Andhra Pradesh High Court took a view
that once the department failed to file an appeal, it would be incorrect to start
collateral proceedings by issuance of show cause notice under Section 11A of the
Excise Act.
12. Apex Court in case of Mafatlal Industries Ltd. v. Union of India 1997
(89) E.L.T. 247 (SC), while dealing with a situation where a manufacturer pays a
duty unquestioningly and his remedy of appeal fails, then after the order becom-
ing final after a lapse of sufficient period, on basis of decision rendered by a High
Court or Supreme Court challenges the same on the ground that duty was not
payable or was payable at a lesser rate, it was held that manufacturer was not
entitled to claim any refund as the adjudication order had become final. In case
in hand assessment order as well as refund order having become final, revenue
cannot restart the matter by issuing show cause notice exercising power under
Section 11A of the Act.
13. The second point canvassed by counsel for petitioner is that show
cause notice dated 17-8-2017 was issued after more than two years from finalisa-
tion of assessment order dated 24-7-2015 and is barred by limitation. Show cause
notice has been treated from the date of refund order dated 5-11-2015, which is a
consequential order after finalisation of assessment, thus, show cause notice is
beyond two years and is barred by limitation. Reliance has been placed upon a
decision of the Apex Court in case of CTO v. Binani Cements (2014) 8 SCC 319,
wherein it has been held that a specific provision relating to a specific and de-
fined subject would prevail over a general provision relating to a broad subject.
14. Sri Gulati further submitted that issuance of show cause notice by
respondent was based on mere change of opinion on the very same facts, only on
account of a subsequent decision of Apex Court, which is not applicable in the
present case. Issuance of notice under Section 11A amounted to reassessment as
held in case of Shahnaaz Ayurvedics v. CCE, Noida 2004 (173) E.L.T. 337 (All. HC).
15. On question of reassessment, on basis of subsequent decision, reli-
ance has been placed on a decision of Apex Court in case of CIT v. Simplex Con-
crete Piles (2013) 11 SCC 373, and also on a Division Bench of this Court in case of
Samsung India Electronics Pvt. Ltd. v. State of U.P. and others, (2016) SCC Online
All. 1539 wherein it was held that subsequent judgment cannot be used to reopen
assessment or disturb past assessments. Relevant Para 11 is extracted hereasun-
der :-
“11. Further, a subsequent judgment cannot be used to reopen assess-
ments or disturb past assessments which have been concluded. [See Para 7,
Austin Engineering v. JCIT (2009) 312 ITR 70 (Guj.) Para 4 and 5, Bear Shoes
2011 (331) ITR 435 (Mad.), B.J. Services Co. Middle East Ltd. v. Deputy Director
(2011) 339 ITR 169 (Uttarakhand), Sesa Goa v. JCIT 2007 (294) ITR 101
(Bom.), Geo Miller and Co. 2004 (134) Taxman 552 (Cal)]. Reliance is also
placed on the decision of the Hon’ble Supreme Court in MEPCO Industries
v. CIT, (2010) 1 SCC 434, where the CIT on the basis of a subsequent deci-
sion of the Supreme Court sought to rectify his earlier order. The Hon’ble
Court held that this would amount to a change of opinion.”
16. Reliance has also been placed on the decision in case of CIT v. Bhanji
Lavji (1972) 4 SCC 88, Arun Gupta v. Union of India (2015) 371 ITR 394 (All. HC)
(Para 14, 20), Calcutta Discount Company Ltd. v. ITO AIR 1961 SC 372 and Jeans

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