TMI Blog2014 (9) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... e said question is left open. It would not be appropriate to give an opportunity to the appellant to prefer statutory appeals and allow it to enjoy the benefit of stay of recovery on the basis of a bank guarantee. Therefore, we would direct the assessee to deposit ₹ 2.5 crores before the adjudicating authority within six weeks and after the said deposit is made and the receipt obtained, the appeal would be entertained within the said period. Considering the amount in question in various appeals it is directed that in case the bank guarantees furnished by the assessees have been encashed no deposit shall be made. If the bank guarantees have not yet been encashed the amount as mentioned hereinabove plus rupees five lakhs shall be deposited within the stipulated time frame of six weeks. The appeals stand allowed in part. The judgment and orders of the High Court in writ petitions and writ appeals are set aside and the assessee/appellants are directed to prefer appeals with the conditions precedent as imposed hereinabove.- Decided partly in favour of assessee. - Civil Appeal No. 3380 of 2010 with C.A. Nos. 3381, 3383-3388 of 2010 and 3389-3392 of 2010 - - - Dated:- 4-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be recovered from the said unit being the refund granted earlier which have become not eligible by virtue of the Clause 145 of the Finance Bill, 2003. Details of duty paid month wise, refund sanctioned and amount required to be realized are furnished in Annexure-1 to the Order enclosed. Now in terms of the provision of Finance Act, 2003 M/s. Hindustan Coca Cola Beverages Pvt. Ltd., P.O. R.R.L., Jorhat is hereby required to make payment of the said amount of ₹ 2,20,18,124.00 within a period of 30 (thirty) days with effect from 13th May, 2003. Failure to comply with this Order with the specified date an interest @ 15% p.a. shall be payable from the date immediately after the expiry of the said period of thirty days till the payment is made. 4. Being aggrieved by the aforesaid order, the appellant preferred a writ petition before the High Court. The validity of Notification No. 65/03 dated 06.08.2003 and certain other notifications including the original notification No. 33/99 dated 3.7.99 were called in question. Before the High Court, the constitutional validity of the amendment of the Finance Act was also called in question. In the course of hearing, the challenge to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Government of India in the erstwhile Ministry of Finance (Department of Revenue), Nos. G.S.R. 508 (E), dated the 8 th July, 1999 and G.S.R. 509 (E), dated the 8 th July, 1999, issued under sub-section (1) of Section 5A of the Central Excise Act read with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods) of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978) by the Central Government shall stand amended and shall be deemed to have been amended in the manner as specified in the Eighth Schedule, on and from the 8th day of July, 1999 to the 22 nd day of December, 2002 (both days inclusive) retrospectively, and accordingly notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, any action taken or anything done or purported to have been taken or done under the said notifications, shall be deemed to be and always to have been, for all purposes, as validly and effectively taken or done as if the notifications as amended by this sub-section had been in force at all material times. (2) Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment has to be understood in the backdrop of the EIGHTH SCHEDULE. THE EIGHTH SCHEDULE reads as follows: [See Section 153(1)] Sl. No. Notification No. and Amendment Date of effect date of amendment (1) (2) (3) (4) 1. G.S.R. 508(E) dated In the said 8 July, 1999 the 8th July, 1999 -- notification, in Central Excise, paragraph 2, in th dated the 8 July, clause (b), the 1999) following proviso shall be inserted, namely:- Provided that such refund shall not exceed the amount of duty paid less the amount of the CENVAT credit availed of, in respect of the duty paid in the inputs used in or in relation to the manufacture of goods cleared under this notification. 2. G.S.R. 509 (E), In the said 8th July, 1999 dated the 8th July, notification, in 1999 paragraph 2, in {33/1999-Central clause (b), the Excise, dated the 8 following proviso July, 1999} shall be inserted, namely:- Provided that such refund shall not exceed the amount of duty paid less the amount of the CENVAT credit availed of, in respect of the duty paid on the inputes used in or in relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, we are not inclined to interpret whether the concept of natural justice would be read into the said provision or not. The said question is left open. 10. The next submission pertains to the issue whether the High Court was justified addressing the lis on merits when series of factual aspects are involved. We are disposed to think that the High Court should not have entered into the factual score to decline the relief to the appellants. We are obliged to say so as Mr. Bagaria, learned senior counsel has contended that it can only be adjudicated upon with reference to the documents on record. The documents mean the transactions, quantum of CENVAT availed of, the amount that was taken as refund by paying from the P.L.A. and further not availing refund of CENVAT credit at any point of time. Needless to emphasise, the said aspect are in the realm of facts which could not have been adjudged or adjudicated by the High Court under Article 226 of the Constitution as the order of recovery was challenged on the ground that no notice was issued to the appellant and that it was not liable to pay in the obtaining factual matrix. 11. Be it stated, there is no cavil over the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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