TMI Blog2022 (7) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the petitioner on the issue, wrote to the Commissioner on 28th March, 2014 requesting him to provide opportunity of personal hearing and allow to make submission on the basis of the aforesaid decision. By a letter dated 22nd May, 2014, Superintendent (Adjudication) informed the petitioner for the first time that under show-cause notice dated 8th April, 2011, already an adjudication order had been passed on 17th October, 2012. In response to the aforesaid letter petitioner wrote a letter on 30th May, 2014 to the respondent authorities concerned that it had not received any such order dated 17th October, 2012 but the petitioner did not receive any response to the said letter and instead on 18th June, 2014 Superintendent (Adjudication) wrote to the petitioner enquiring from it as to whether any appeal has been filed against the said adjudication order dated 17th October, 2012 and whether any stay had been granted and if not then petitioner was asked to deposit the amount arising out of the aforesaid adjudication order. It is the case of the petitioner that it again wrote a letter to the Range Superintendent that it had not received any adjudication order and requested him for fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to enable the petitioner to file an appeal before the Tribunal. It is the case of the petitioner that it was surprised on receiving an order dated 18th November, 2021 after seven years by which petitioner was informed that while dealing with a different refund claim of the petitioner in respect of a sum of Rs. 4,75,37,789/- which was sanctioned for refund, the same has been adjusted against the demand relating to the aforesaid adjudication order dated 17th October, 2012 which was never served upon the petitioner and in the aforesaid order dated 18th November, 2021 it was also mentioned for the first time that the aforesaid adjudication order dated 17th October, 2012 was dispatched to the petitioner by Speed Post with acknowledgment due (A/D). By a letter dated 23rd November, 2021 petitioner again requested the respondent authorities concerned for providing it a copy of the acknowledgment due relating to the alleged service or delivery of the aforesaid adjudication order dated 17th October, 2012 to which respondents during the pendency of the this Writ Petition which was filed on 8th March, 2022, on 22nd March, 2022, issued a corrigendum in respect of the aforesaid adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the law for filing statutory Appeal after receiving the adjudication order in question during the hearing of this Writ Petition. Petitioner also challenges impugned action of recovery of the demand in question without serving a copy of the order upon the petitioner to avail its statutory right of filing an appeal against the same and according to the petitioner the maximum amount which petitioner was required to make payment by way of pre-deposit for filing such appeal is 20 per cent which has been deposited by the petitioner and for the first time in course of hearing of this Writ Petition adjudication order in question was served upon the petitioner and against which Appeal is pending and petitioner submits that during the pendency of the said appeal the respondent authorities concerned cannot recover from the petitioner s from its another refund more than 20 per cent of the demand in question. Petitioner submitted that relevant provisions of Section 37C of the Central Excise Act, 1944 provides, inter alia, that an order shall be deemed to have been passed on the date on which it is delivered by post. At the material period, the aforesaid section provided for sending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other adjudication order dated September 21, 2012. When settling the matter, dealt with in the order dated September 21, 2012 under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, in the settlement from the petitioner, mentioned the date of the letter of the Range Superintendent, namely, July 25, 2014, by which the petitioner was informed of the passing of the order dated September 21, 2012, as the date of its receipt. Petitioner submitted that the respondents cannot be absolved of their statutory obligation to show proof of delivery of adjudication order dated October 17, 2012 by making allegations against the petitioner in respect of a different adjudication order which also was not received by the petitioner. Petitioner submitted that without service of the adjudication order, it was not possible for the petitioner to prefer an appeal. It was also not permissible for the respondent authorities to take any step for recovery on the basis of adjudication order in question which was not served upon the petitioner. An order which has not been served cannot have any consequences. Petitioner submitted that in respect of the same issue, for the subsequent period, petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledgment due and those judgments are mainly on the amended provisions of Section 37C of the Act now prevailing and not relating to pre-amended period. On the main ground of challenge by the petitioner that the action of recovery of demand arising out of adjudication order in question was never served at the relevant point of time. When the adjudication order in question was passed, as per Section 37C of the Central Excise Act, 1944, prevailing during the relevant period under which it was statutory obligation on the part of the respondent authority to dispatch the adjudication order with acknowledgement due in proof of service of the same which could not be established by Mr. Banerjee, learned Advocate appearing for the respondent authority by producing acknowledgement due in proof of service of the same. He failed to produce any document to establish that either adjudication order was actually served or the adjudication order was sent by speed post with A/D. He also could not explain the latches on the part of the respondent authority concerned in taking any steps for recovery of the demand in question arising out of the adjudication order dated 17th October, 2012 till November, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and discussion made above and the same are declared as arbitrary and illegal and 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 w ..... 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