TMI Blog2017 (7) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... s payable to him and which was paid, though mistakenly under wrong code i.e. Code no. 001, could not have been subjected to technical defect on the part of authority, so as to saddle with liability - this is a case of issuing appropriate mandamus for calling upon the authorities to treat the payment of ₹ 5,10,573/- against Code No. 002 from the date on which, it was paid resulting into exempting the petitioners from any coercive liability of so called non-payment against Code No. 002 - demand set aside - petition allowed - decided in favor of petitioner. - Special Civil Application No. 21617 of 2016 - - - Dated:- 13-6-2017 - S. R. Brahmbhatt And A. G. Uraizee, JJ. Mr Dhaval Shah, Advocate for the Petitioners Ms Avani S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a Letter F. No. IV/16-07/Auro Pump/T/2016-17 Dated 19/10/2016 Letter F. No. AR-IV/DIV-IV/Auro Pumps/Def./ 2016-17 Dated 11/11/2016 issued by the Superintendent, Central Excise, Range IV, Division IV, Bharuch (Annexure A collectively); and other communication issued by the respondents vide letter dated 16/3/2016, 28/3/2016, 10/10/2016. (B) During the pendency and Final Disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the Respondents not to proceed with the F. No. IV/16-07/Auro Pump/T/2016-17 Dated 19/10/2016 Letter F. No. AR-IV/DIVIV/ Auro Pumps/Def./ 2016-17 Dated 11/11/2016 issued by the Superintendent, Central Excise, Range IV, Division IV, Bharuch (Annexure A collectively); (C) An ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llotment of the assessee code on March, 2006, the petitioners uses assessee code no. 002 till date for payment of duties and for filing statutory returns also. 5.2 The petitioners have paid Central Excise duty of ₹ 5,10,573/- in the bank account in GAR-7, the accountant of the petitioners' has wrongly mentioned assessee code No. 001 instead of Code no. 002. This was not in the knowledge of the petitioners and therefore, the petitioners has also filed return for the month of April-June, 2015 and shown the amount of ₹ 5,10,573/- as payment in the assessee code no. 002. 5.3 On 16th March, 2016, the respondent no. 5 drew the attention of the petitioner about the mistake and the petitioner was informed that the duty made un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October, 2016. Thereafter, on 11th November, 2016, the respondent no.4 issued notice and directed the petitioner to pay the amount within seven days from the date of service of the notice and informed that in case of failure, steps will be taken to realize the amount by resorting to attachment and sale of excisable goods as provided under Section 11 of the Central Excise Act, 1944 read with Section 142 of the Customs Act, 1962. Hence, the petitioners have filed present petition under Article 226 of the Constitution of India, challenging the hyper technical approach of the respondents. 6. The learned counsel appearing for the petitioners invited Court's attention to the fact that duty, which was payable under Assessee Code No. 002 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the petitioners in support of his contentions, relied upon the decisions namely the decision in case of Devang Paper Mills Pvt. Ltd Vs. Union of India, reported in 2016(4) S.T.R. 418 (Guj.) and in case of Singh Enterprises Vs. Union of India, reported in 2016(45) S.T.R. 508 (Jhar.). 8. The authority even during the pendency of this petition, came up with reply that on account of accounting problem, as there was no plausibility of giving set-off, the only mode available to the assessee petitioners is to seek refund against the payment under code 001 and make good the duty demand under code 002. The learned counsel appearing for respondent nos. 2 to 5 invited Court's attention to affidavit-in-reply filed by respondent with specific e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the said challan, it was found that the amount of the duty was paid in the assessee code no. AAACA9820DXM 001 instead of assessee Code No. AAACA9820DXM002. It is submitted that assessee code no. AAACA9820DXM 001 and No. AAACA9820DXM002 both belong to the petitioners and both are in existence. Therefore, there was non-payment of the dues amount of ₹ 5,10,573/- as per ER-3 return showing for the period of quarter ending June, 2015. 9. Learned counsel appearing for the respondent further submitted that it was also pointed out to the petitioners in the letter that there are no provisions with regard to the transfer of the duty from one account to the other account and the petitioners were directed to pay the duty amount and cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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