Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2018 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (8) TMI 2016 - HC - Central ExciseArea Based exemption - benefit of N/N. 32/99 and 33/99, dated 8-7-1999 was available for which the tax has been paid - constitutional validity of Section 154 of the Act, 2003 - It was alleged that for some months the petitioners made payment of the excise duty and they were not refunded the amount and that is why writ petitions were filed before the Gauhati High Court and certain interim orders were passed directing the provisional refund of the excise duty by the authorities to the petitioner-entrepreneurs - HELD THAT:- It is not disputed that the constitutional validity of Section 154 of the Act, 2003 has been upheld by the Apex Court in the case of R.C. Tobacco (P) Ltd. [2005 (9) TMI 80 - SUPREME COURT] and in furtherance thereof the demand notice which was raised by the respondents dated 3-6-2003 has been upheld by the Apex Court in the case of the present petitioner in M/S. DHARAMPAL SATYAPAL LTD. VERSUS DEPUTY COMMISSIONER OF CENTRAL EXCISE, GAUHATI & OTHERS [2015 (5) TMI 500 - SUPREME COURT] holding that there was always a requirement of issuance of show cause notice by the assessing authority before passing the order of recovery irrespective of the fact whether Section 11A of the Act is attracted or not but in the given facts of the present petitioner the Apex Court in unequivocal terms arrived to the conclusion as observed in para 45 that any infraction of principles of natural justice in the instant case and to make a fresh demand of amount recoverable after issuance of notice to show cause, would be a useless formality and is not going to serve any purpose after the law has been laid down by the Apex Court in the case of R.C. Tobacco (P) Ltd. [2005 (9) TMI 80 - SUPREME COURT]. It may be further noticed that when the notices were issued by the assessing authority to deposit the outstanding interest in terms of Section 154(4) of the 2003 Act vide notice dated 30-9-2015 the petitioner submitted their objections and after affording opportunity of hearing in terms of the interim order of this Court dated 8-12-2015 the authorized representative of the petitioner appeared before the assessing authority on 25-4-2016 and the only grievance raised was about the calculation made as to whether both days are to be made inclusive or the date of assent dated 14-5-2003 has been excluded for the purpose of computing thirty days for calculating the interest in terms of Section 154(4) of the Act, 2003 and the offer made by the petitioner to be calculated from 14-6-2003 was also accepted by the assessing officer as being reflected from the detailed report dated 19-5-2016 and thereafter again a notice was sent to the petitioner on 2-5-2017 followed by 20-6-2017 and thereafter 14-9-2017 and that again became a subject matter of challenge in the instant petition - But to make it clear that the demand notices which were issued to the petitioner are in furtherance of the demand notice originally served dated 3-6-2003 for payment of interest in terms of Section 154(4) of Finance Act, 2003 and after the first demand notice dated 3-6-2003 has been upheld by the Apex Court, we find no reason to question the subsequent notices served upon the petitioner, more so, when the calculation was originally neither challenged before the Apex Court and nor before this Court but still when the opportunity was afforded the petitioner raised objection about one day of computation for the day on which the President’s assent has to be excluded dated 14-5-2003 and that was noticed by the assessing authority before the impugned demand notices being raised and we find no reason for the petitioner in filing the present batch of writ petitions and questioning the demand notices. In the instant case, after the constitutional validity of Section 154 of the Finance Act, 2003 being upheld by the Apex Court in the case of R.C. Tobacco (P) Ltd. (supra), the appeals preferred by the petitioner also came to be dismissed questioning the constitutional validity of Section 154 of the Finance Act, 2003 and after the demand notice dated 3-6-2003 served upon the petitioner in exercise of power under Section 154 of the Finance Act, 2003 being upheld by the Apex Court repelling all his contentions in M/S. DHARAMPAL SATYAPAL LTD. VERSUS DEPUTY COMMISSIONER OF CENTRAL EXCISE, GAUHATI & OTHERS [2015 (5) TMI 500 - SUPREME COURT] it was expected from the petitioner to come forward and volunteer to deposit in terms of the demand notices served by the department and honour the view expressed by the Apex Court and this practice being adopted of assailing for futile reasons just to defer, for the sake of convenience being affordable to the litigant, such tendency which has now been developed, is deprecated by this Court. Petition dismissed.
|