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2020 (1) TMI 896 - HC - Central ExciseSpecial Audit - Section 14AA of the Central Excise Act, 1944 - allegation of over-utilisation of credit of duty by the assessee in the relevant period - HELD THAT:- The order dated December 06, 2016, passed in the earlier round of writ petition, cannot be construed to mean that the learned Single Judge directed the Commissioner, Central Excise, Kolkata – II to pass the reasoned order, though such Commissioner may have had no authority to pass an order for special audit under Section 14AA of the Central Excise Act, 1944 at the relevant point of time. The Revenue admits that at the time of passing the order dated June 06, 2017, the power to pass an order for Special Audit under Section 14AA of the Central Excise Act, 1944 was taken away from the Commissioner, Central Excise, Kolkata –II and the said power was vested with the Commissioner, Audit – I, Central Excise, Kolkata. It is elementary that a mandamus does not command any obligation to be performed neither authorises any authority to exercise power de hors the statute. When the learned Single Judge had remanded the matter to “the Commissioner” for fresh consideration, such exercise should have been carried out by such Commissioner who at that point of time was vested with such power under Section 14AA of the Central Excise Act, 1944. It is true that the assessee did not raise any issue as to the jurisdiction at the time of hearing before of the Commissioner, Central Excise, Kolkata – II. In the present writ petition also, the lack of jurisdiction of the said Commissioner has neither been specifically pleaded nor argued at the time of hearing. But at the same time it must be noticed that at the relevant point of time the said Commissioner was divested of the power under Section 14AA of the Central Excise Act, 1944. The order passed by the said Commissioner was without authority The relevant audit Commissioner, empowered under Section 14AA of the Central Excise Act, 1944, after promulgation of the Central Goods and Services Tax Act, 2017, is directed to pass a reasoned order after giving due opportunity of hearing to the assessee - Appeal allowed.
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