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2022 (7) TMI 47 - HC - Central ExciseViolation of principles of natural justice - Recovery of central excise duty, interest and penalty without service of adjudication order - absence of actual proof of any service of the adjudication order upon the petitioner - Section 37C of the Central Excise Act, 1944 - HELD THAT:- So far as question of filing of appeal and payment of demand against the aforesaid adjudication order dated 17th October, 2012 which was never served upon the petitioner and which was disclosed for the first time by the respondents in their affidavit-in-opposition on 25th March, 2022 in course of hearing of this Writ Petition, petitioner has already filed Appeal before the Appellate authority concerned by making statutory pre-deposit by treating the date of receipt of the said order annexed the affidavit-in-opposition to this Writ Petition for the first time as the date of order which was served upon the petitioner in course of hearing of this Writ Petition and as such respondents’ allegation of latches on the part of the petitioner in filing Appeal is not sustainable in law and it is nothing but an attempt to cover up respondent’s own latches. So far as action of the respondents’ action of recovery of the amount of the demand in question on the basis of adjudication order dated 17th October, 2012 is concerned which was never served on the petitioner earlier and since now appeal has been filed by the petitioner by making statutory pre-deposit, action of the respondents making recovery of demand more than the statutory pre-deposit amount required to be made in filing Appeal against adjudication order, from the other refundable amount by attachment of bank account and recovery from the bank account of the petitioner by way of demand draft is not sustainable in law in view of the facts and circumstances as appears from record. The respondents authority considered are directed to take immediate steps for refund of the amount recovered in excess of 20 per cent of the demand from the petitioner on the basis of adjudication order dated 17th October, 2012, from its bank and pass necessary order for withdrawal of impugned order of attachment of bank account in question of the petitioner within seven days from date since the statutory pre-deposit amount for filing Appeal against the adjudication order dated 17th October, 2012 has already been made by the petitioner which is matter of record - petition disposed off.
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