TMI Blog2014 (4) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... d after the learned Single Judge disposed of the writ petition, with liberty to the respondents. Therefore, it is clear that the amount of ₹ 7.53 crores paid by the appellant, will not fall either under Section 11A(1)(b) or under Section 11A(6). If it will not fall under any of these two provisions, it cannot be taken to be a payment made in relation to any statutory provision. Therefore, irrespective of whether the amount was paid under coercion or voluntarily, the respondents have no business to retain the same. - Refund allowed with 6% interest - Decided in favor of assessee. - Writ Appeal (MD) No. 339 of 2014 and M.P. (MD) No. 1 of 2014 - - - Dated:- 30-4-2014 - V. Ramasubramanian and Ms. V.M. Velumani, JJ. Shri Vijay Narayanan, Senior Counsel for Ms. L. Maithili, for the Appellant. Shri R. Aravindan, for the Respondent. JUDGMENT [Judgment per : V. Ramasubramanian, J.]. - The writ appeal arises out of an order passed by the learned Judge in a writ petition filed by the appellant herein, for the refund of an amount allegedly collected, unlawfully, from them by the respondents. 2. We have heard Mr. Vijay Narayanan, learned senior counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to have the investigation completed and to have the issue adjudicated. Paragraphs 7 to 9 of the order of the learned Judge, dated 8-11-2013, may be usefully extracted as follows : 7. In the above said circumstances, the only course which is possible for this Court is to issue direction to the respondents to complete the investigation and to issue show cause notice within a time frame and to issue a direction to the Quasi Judicial Authority to pass final order, after affording opportunity to the petitioner, within a time frame. 8. When this was stated, the learned counsel for the respondents would submit that on or before 30-11-2013, the investigation would be completed and show cause notice would be issued to the petitioner by the Quasi Judicial Authority. The learned counsel for the petitioner in turn would submit that in the event such show cause notice is issued before 30-11-2013, the petitioner will submit his objection, along with the documents, within three days, thereafter. The learned counsel for the respondents would submit that if the petitioner co-operates and submits his explanation and objection, along with the documents, after affording opportunity to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Gujarat High Court was concerned with a case where an assessee issued stop payment instructions to the Bank in respect of 13 cheques which were allegedly taken compulsorily from the assessee, on an allegation of availing fraudulent Cenvat credit on the basis of fake Central Excise Invoices. Holding that the action of the department in collecting amounts without orders of assessment is illegal, the Division Bench of the Gujarat High Court pointed out that the liability to pay duty can arise only on the production/manufacture of excisable goods and that the Revenue is not an organization which is entitled to retain money without sanction of law. In fact, a controversy was raised in that case as to whether the payment was made by the assessee voluntarily or by coercion. The Gujarat High Court refused to go into the controversy, on the ground that it was unnecessary in view of the fact that no amount can be collected without the authority of law. 10. In National Organic Chemical Industries Limited v. Union of India - 2008 (223) E.L.T. 570 (Bombay) = 2009 (16) S.T.R. 107 (Bom.), a Division Bench of the Bombay High Court echoed similar views. 11. In Century Metal Recycling Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of duty, - (a) the Central Excise Officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been so levied or paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; (b) the person chargeable with duty may, before service of notice under clause (a), pay on the basis of (i) his own ascertainment of such duty; or (ii) the duty ascertained by the Central Excise Officer, the amount of duty along with interest payable thereon under section 11AA. (2) The person who has paid the duty under clause (b) of sub-section (1), shall inform the Central Excise Officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty so paid or any penalty leviable under the provisions of this Act or the rules made thereunder. (3) Where the Central Excise Officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Officer. (iv) Once payment is made under clause (b) of sub-section (1), the Excise Officer shall not serve any notice under clause (a). However, if the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then he can proceed to issue the notice as provided in clause (a). 17. A careful look at sub-sections (1) to (3) of Section 11A would show that to qualify as a payment made under Section-A(1)(b), there must either be an own ascertainment of such duty or the duty ascertained by the Central Excise Officer. What is important to note in Section 11A(1)(b) is the expression ascertainment . For a payment to come within the parameter of Section 11A(1)(b), the same must have been made either on the basis of own ascertainment by the assessee or on the basis of an ascertainment by the Central Excise Officer. In other words, if there is no ascertainment either by the assessee or by the Central Excise Officer, the Department cannot contend that a payment made by the assessee would fall within the scope of Section 11A(1)(b). But, in the case on hand, it is not pleaded either in the counter affidavit filed by the department before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohibits the Central Excise Officer from serving any notice in respect of the amount paid. But, in the case on hand, a notice has been served after the learned Single Judge disposed of the writ petition, with liberty to the respondents. Therefore, it is clear that the amount of ₹ 7.53 crores paid by the appellant, will not fall either under Section 11A(1)(b) or under Section 11A(6). If it will not fall under any of these two provisions, it cannot be taken to be a payment made in relation to any statutory provision. Therefore, irrespective of whether the amount was paid under coercion or voluntarily, the respondents have no business to retain the same. Hence the contention of the learned Standing Counsel for the respondents that the payment was authorised by law has to be stated only to be rejected. 21. The writ appeal is allowed, the order of the learned Judge is set aside and the writ petition filed by the appellant is allowed, directing the respondents to refund the amount of ₹ 7.53 crores, collected from the appellant. We give a time of four weeks to the respondents to make payment of the amount to the appellant, from the date of receipt of a copy of this order. If ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
