TMI Blog2013 (4) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... ivedi for the respondents has taken a preliminary objection regarding the maintainability of the petition by relying upon the decisions of the Apex Court in the cases of State of U.P. Others v. Bridge Roof Company (India) Limited, reported in (1996) (6) SCC 22, M/s. Titagarh Paper Mills Ltd. v. Orissa State Electricity Board Another, reported in 1975 (2) SCC 436, ABL International Limited Another v. Export Credit Guarantee Corporation of India Limited Others, reported in (2004) 3 SCC 553, Pimpri Chinchwad Municipal Corporation v. Gyatri Construction Company, reported in (2008) SCC 172, Keral SEB v. Kurien E. Kalathil, reported in (2000) 6 SCC 293, Empire Jute Company Limited Others v. Jute Corporation of India Limited Another, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invited on 10th October, 2007 by the respondents for Operation and Maintenance of Calcined Bauxite Plant, Gadhsisa. At Annexure-B to this application, it has been clearly mentioned by the respondents that net shortfall would come to 1165.000 MT and Recovery (shortfall) would come to ₹ 22,49,615.000 whereas the excise duty at the rate of 10.3% would come to ₹ 9,00,568.000. The respondents are recovering this excise duty from the petitioner. 8. Though the contract entered between the parties does not permit such a recovery of excise duty from the petitioner, as per the Clause 10 of the agreement, only penalty could be recovered. The respondents have recovered total amount of ₹ 22,49,615.000 as penalty. Now, they are furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,000 per tonne. All such payments will have to be made by you to GMDC within 15 days of its raising bill upon you, failing which the same shall be deducted from your RA bills. Therefore, practically respondents are entitled to impose penalty as per such condition but they cannot charge or claim excise duty as charged by them by their letter dated 26-11-2010. The letter dated 26-11-2010, at Annexure-B, confirms that respondents have calculated recovery against the shortfall of calcined bauxit production. Accordingly, penalty for shortfall was already deducted and such deduction is disturbed by this Court. However, in the same letter, respondents have charged ₹ 9,00,568/- towards excise at the rate of 10.03% which was prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereby, payment of excise duty is variable. In such condition, there is a reference of Annexure-A and on perusal of such Annexure-A at Page 25, it becomes clear that actually the entire target of 70,000 MT category bifurcated per month from October, 2007, till April, 2009 and different target for each month is categorically disclosed respondents in work-order. Therefore, the excise duty is payable per month as and when targeted production is completed and final product is removed from the factory or warehouse. Therefore, also there is no reason for respondent No. 2 either pay the excise duty well in advance for 18 months without realizing the actual production and to charge difference of excise duty from the petitioner. The respondents have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate Mr. D.K. Trivedi for the respondents states that in affidavit-in-reply filed on behalf of respondent No. 1, it has been clearly stated that Central Excise Duty was paid on 26-4-2011 after taking into consideration the value of 69,645 MT goods expected to have been manufactured by the petitioner. The shortfall in production by the petitioner came into knowledge of the respondents on 26-11-2010 much before the excise duty was deposited by the petitioner. It is not the case of the respondents that there is mistake in the datas mentioned above. Therefore, contention raised by the respondents that they had deposited the excise duty and after one year, they came to know about the shortfall of production and thereby excess payment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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