TMI Blog2017 (12) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... not take up the issue of the duty not being payable for nearly one and a half years. In the meantime, by their conduct and offer, the petitioners stopped the department from carrying out further investigations. There is no reason to direct the department to refund the amount in question at this stage - petition allowed. - Special Civil Application No. 9119 of 2017 - - - Dated:- 27-11-2017 - MR. AKIL KURESHI AND MR. A.Y. KOGJE, JJ. For The Petitioner : Amal Paresh Dave, Advocate, Mr Paritosh Gupta, Advocate With Mr Paresh M Dave, Advocate For The Respondent : Priyank P Lodha ORAL ORDER ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioners have challenged a communication dated 5.4.2017, at annexure-L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent a total sum of ₹ 61,82,592/- which comprised of excise duty of ₹ 49,27,963/-, interest of ₹ 5,15,435/- and a penalty of ₹ 7,39,195/-. Said amount of ₹ 61,82,592/- was deposited in different installments. A sum of ₹ 33 Lacs was paid through Cenvat Credit on 18.9.2015 itself. The remaining amount was paid in cash on four separate occasions on 9.10.2015, 2.3.2016, 8.3.2016 and 11.3.2016. 5. On 6.4.2016, the petitioners wrote to the Assessing Commissioner of Central Excise and pointed out that in connection with the visit of the officers of the department to the factory premises of the petitioners on 18.9.2015, the petitioners had paid the whole of the excise duty along with interest and penalty. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest for refund and reiterated the demand for the balance amount of ₹ 3,00,987/-. At that stage, the petitioners filed the present petition for the above noted prayers. 8. Learned advocate for the petitioners submitted that the amount was deposited under coercion. Now that the petitioners have realized that there was no duty liability. They are entitled to seek refund of the amount. The department cannot withhold the said amount without authority of law. The amount must be returned forthwith. In support of his contentions, counsel relied on following decisions. (i) Abhishek Fashions Pvt. Ltd. v. Union of India, 2006 (202) ELT 762 (Guj.) ( ii) Sonali Dyeing and Printing Pvt. Ltd. v. Union of India, 2006 (205) ELT 120 (Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers also deposited in five different trenches, a total sum of ₹ 61,82,592/- which included the basic duty with interest and penalty. Thus, between 18.9.2015 till 11.3.2016, when the petitioners deposited the last amount of duty, interest and penalty, the petitioners had more than sufficient time to ponder upon position and take a stand whether the duty was in fact payable or not. Even when the petitioners wrote letter dated 6.4.2016, the question of duty not being payable was not taken up. The petitioners, on the contrary, conveyed to the department that the petitioners having paid the duty with interest and penalty, the entire issue may be closed. We have reproduced a portion of this letter to demonstrate that till that date the stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similar complaint of coercion was also there in the case of Sonali Dyeing and Printing Private Limited (supra). The Punjab and Haryana High Court in the case of Central Metal Recycling Private Limited (supra) was concerned with this issue directly. It was in this background that the High Court observed as under:- 13. As far as the amount deposited by the petitioners is concerned, case of the petitioners is that the same was deposited under coercion. Case of the respondents was that the same was deposited voluntarily. Whatever be the position, unless there is assessment and demand, the amount deposited by the petitioners cannot be appropriated. No justification has been shown for retaining the amount deposited, except saying that sin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
