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TMI Blog2022 (7) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... on order on the basis of which the impugned demand arises and further raises the issue as to whether the respondent CGST authority can recover amount in excess of the statutory amount which is required to be deposited in filing Appeal against the adjudication order in question and the demand arises out of the same in terms of CBDT circulars dated 29th February, 2016 and 31st July, 2017 if the petitioner has filed any appeal against the said adjudication order by making statutory deposit. It is the case of the petitioner that a show-cause notice dated 8th April, 2011 was issued to the petitioner proposing to disallow CENVAT credit of Rs. 9,35,24,895.78/- taken by the petitioner in respect of Naphtha during the period April, 2006 to January, 2011 which was used for manufacturing of electricity and that the petitioner replied to the said notice by its letter dated 18th April, 2011 and also appeared for personal hearing on 25th July, 2012 before the respondent authorities concerned but thereafter petitioner did not receive any further notice or order from them. Petitioner submits that on 28th March, 2014 on coming to know about a decision of Mumbai Bench of the Tribunal favourable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit-in-opposition filed by the respondents that the postal authority also could not provide any document to the respondent authorities concerned in proof of actual service or delivery of the aforesaid adjudication order/consignment on the petitioner. Petitioner submits that in spite of repeated requests made by the petitioner to the respondent authorities concerned no copy of the adjudication order in question was provided to it neither any document was served upon the petitioner to establish that the adjudication order in question was actually delivered or served upon the petitioner and the respondent authorities concerned sitting tight over the repeated requests of the petitioner for providing it the copy of the adjudication order in question since August, 2014 and all of a sudden after seven years, the Assistant Commissioner by a letter dated 2nd November, 2021, enquired from the petitioner as to whether any appeal was pending in support of the adjudication order dated 17th October, 2012 and in response to the same petitioner again informed the Assistant Commissioner that it had not received any order and again requested for furnishing it with a certified copy of the same to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r's bank against which by an interim order of this Court dated 10th March, 2022 status quo is being maintained. Petitioner submits that apart from the said demand draft provided at the instance of the respondent authorities, the State Bank of India kept a further sum of Rs. 15,51,15,350.78/- under attachment. Petitioner has challenged the aforesaid action of recovery of demand by the respondent authorities concerned alleged to be arising out of the aforesaid adjudication order dated 17th October, 2012 which according to the petitioner was never served upon it in spite of repeated requests and sitting over the same and not taking any step for recovery of the alleged demand from 2014 till middle of November, 2021 that is almost for more than 7 years. Petitioner challenges the impugned action of adjusting of another refund with the demand in question arising out of the aforesaid adjudication order dated 17th October, 2012 in excess of 20 per cent of the demand which is the maximum amount of pre-deposit to be made by the petitioner for filing of any appeal against demand in an adjudication order and which petitioner has filed by making statutory pre-deposit as required under the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68 (Raj) - Paragraphs 8,9 and 10; (vii) Vinod Choudhury V. Union of India, 2016 (336) ELT 388 (Raj) - Paragraphs 4,5 and 6. It is well settled principle of law that if a statute provides for something to be done in a particular manner, then it has to be done in that manner and in no other manner [Chandra Kishore Jha v Mahavir Prasad, (1999) 8 SCC at 273]. The provisions of Section 27 of the General Clauses Act, 1897 will not apply in this case having regard to the precise language of Section 37C of the aforesaid Act at the relevant period. Petitioner emphasises on the specific mention in the supplementary affidavit dated April 19, 2022, of the respondent authorities where they have made allegations which relates to another adjudication order dated September 21, 2012 and on such basis further alleged that the petitioner's stand as regards non-receipt of adjudication order dated October 17, 2012, was not tenable. The said supplementary affidavit has been duly dealt with by the petitioner by an affidavit dated April 20, 2022. The fact of the matter is that just like the adjudication order dated October 17, 2012, the petitioner did not also receive the other adjudication order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that within the period allowed for preferring appeal, the authorities can recover only the pre-deposit amount and excess recovery has to be refunded. In Graphite India Ltd. V Deputy Commissioner of Income Tax, (WPO 113 of 2018 decided on February 15, 2022), refund was directed by this Court of the amount recovered in excess of 20 per cent of the demand required to be deposited in terms of CBDT Circulars dated February 29, 2016 and July 31, 2017. Learned advocate appearing for the respondents opposes this Writ Petition and the prayer made therein mainly on the ground that there is inordinate delay in filing the Writ Petition and the adjudication order in question out of which demand in question arises is an appealable order and petitioner should exhaust the alternative remedy by way of Appeal and submits that law relating to service of adjudication order by speed post is settled and he relies on several decisions in support of his contention but facts in none of those cases are similar to the present case i.e., that during the relevant period as per law prevailing either there was actual service or there was proof of service with acknowledgment due and those judgments are mainly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to chase the respondents for furnishing it the copy of the adjudication order in question and cause of action arose for the petitioner for filing this Writ Petition only after receiving the order of the Assistant Commissioner dated 18th November, 2021 by which the petitioner was informed that its claim of refund in some other cases has been adjusted with the demand in question arising out of the adjudication order dated 17th October, 2012. So far as question of filing of appeal and payment of demand against the aforesaid adjudication order dated 17th October, 2012 which was never served upon the petitioner and which was disclosed for the first time by the respondents in their affidavit-in-opposition on 25th March, 2022 in course of hearing of this Writ Petition, petitioner has already filed Appeal before the Appellate authority concerned by making statutory pre-deposit by treating the date of receipt of the said order annexed the affidavit-in-opposition to this Writ Petition for the first time as the date of order which was served upon the petitioner in course of hearing of this Writ Petition and as such respondents' allegation of latches on the part of the petitioner in fili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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