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2023 (3) TMI 582 - CALCUTTA HIGH COURTUnauthorized recovery made without even serving copies of the--adjudication order - Seeking for a direction upon the appellants to-consider the claim of refund, which they made in their-representation dated 28th March, 2022 - case of the-respondents/writ petitioners was that even before the order of-adjudication could be served, by way of attachment a sum of-Rs.29,14,853/- from the bank account of the first respondent-and a sum of Rs.15,43,673/- from the bank account of the-second respondent were swiped off/debited. Whether they could have approached this Court by filing a writ-petition when admittedly their appeal against the order passed-by the Commissioner (Appeals) dated 16th March, 2021 is pending-before the Tribunal? HELD THAT:- The prayer-sought for by the respondents/writ petitioners cannot be admitted, though not on-merits but on the ground that they cannot bypass the statutory-remedy, which they have availed and approach this Court as if-this Court is an executing Court while the appeal at the-instance of the respondents is pending before the Tribunal. The learned advocate for the respondents has also-referred to the provisions of Finance Act, 1994 and Section-35F of Central Excise & Customs Act. As pointed earlier the-respondents were wholly unjustified in bypassing the remedy-which they have already availed by filing an appeal before the-Tribunal. However, according to the respondents the-Department is not entitled to retain anything over and above-the amount of 10% which was pre-deposited at the time of-filing appeal before the Tribunal. Such a prayer should have-been made before the Tribunal and not by way of writ petition.-More importantly, the prayer sought for in the writ petition-is to consider the representation whereas the direction issued-is a positive direction to effect refund which was-impermissible for the writ Court to do. The appeal filed by the-Revenue is allowed and order passed by the learned writ Court-is set aside. Consequently, the writ petition stands-dismissed.
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