2014 (9) TMI 585 - SC - Central Excise

North East Exemption 32 and 33/1999-CE, dated 8.7.1999 - Retrospective Amendment in 2003 to restrict refund to the excise duty paid minus the CENVAT Credit availed - Recovery of differential duty and excess refund - principle of natural justice - opportunity of being heard not provided - non issuance of Show Cause notice - revenue contended that as the computation and the recovery are to be made within a time frame of thirty days, issue of a show cause notice cannot be read into such a provision. - Held that - Per contra, Mr. Bagaria has submitted that in the above-referred decision notices have already been given and, therefore, issuance of notice is a must. Ordinarily we would have adverted to said submission advanced at the bar but we find, the assessee had not demonstrably argued this ground and addressed the lis on merits before the High Court and, therefore, we are not inclined to interpret whether the concept of natural justice would be read into the said provision or not. The said question is left open. It would not be appropriate to give an opportunity to the appellant to prefer statutory appeals and allow it to enjoy the benefit of stay of recovery on the basis of a bank guarantee. Therefore, we would direct the assessee to deposit ₹ 2.5 crores before the adjudicating authority within six weeks and after the said deposit is made and the receipt obtained, the appeal would be entertained within the said period. Considering the amount in question in various appeals it is directed that in case the bank guarantees furnished by the assessees have been encashed no deposit shall be made. If the bank guarantees have not yet been encashed the amount as mentioned hereinabove plus rupees five lakhs shall be deposited within the stipulated time frame of six weeks. The appeals stand allowed in part. The judgment and orders of the High Court in writ petitions and writ appeals are set aside and the assessee/appellants are directed to prefer appeals with the conditions precedent as imposed hereinabove.- Decided partly in favour of assessee.

Summary

Issues Involved:
1. Retrospective amendment of notifications under the Finance Act, 2003.
2. Recovery of refunded amounts without issuing a notice.
3. Principles of natural justice in the context of recovery proceedings.
4. Jurisdiction and scope of High Court under Article 226 of the Constitution.
5. Adjudication on factual aspects by the High Court.
6. Requirement to prefer statutory appeals and conditions for stay of recovery.

Detailed Analysis:

1. Retrospective Amendment of Notifications:
The case revolves around the retrospective amendment of certain notifications by the Finance Act, 2003. The amendment was brought into force by Section 153 of the Act, which retrospectively amended notifications from 08.07.1999 to 22.12.2002. The amendment aimed to limit the refund to the amount of duty paid less the amount of CENVAT credit availed.

2. Recovery of Refunded Amounts Without Issuing a Notice:
The Assistant Commissioner, Central Excise, Jorhat, passed an order on 3.6.2003, demanding the recovery of Rs. 2,20,18,124.00 from the appellant without issuing a prior notice. The appellant contended that this action violated the principles of natural justice as no opportunity for a hearing was provided.

3. Principles of Natural Justice:
The appellant argued that the recovery order was impermissible without a notice, violating the principles of natural justice. The High Court did not address this issue, focusing instead on the merits of the case. The Supreme Court noted that the High Court should not have delved into the factual aspects without addressing the procedural fairness of issuing a notice.

4. Jurisdiction and Scope of High Court under Article 226:
The Supreme Court observed that the High Court should not have adjudicated on factual matters under Article 226 of the Constitution. The High Court's role was to ensure procedural fairness, not to engage in fact-finding.

5. Adjudication on Factual Aspects by the High Court:
The Supreme Court held that the High Court erred in addressing the merits of the case involving complex factual determinations. The High Court should have limited its scope to the procedural aspects, particularly the issuance of notice and adherence to principles of natural justice.

6. Requirement to Prefer Statutory Appeals and Conditions for Stay of Recovery:
The Supreme Court directed the appellant to prefer statutory appeals under Section 35 of the Central Excise Act, 1944. The appellant was required to deposit Rs. 2.5 crores before the adjudicating authority within six weeks. This deposit was a condition precedent for the appeal to be entertained. The Court also directed the Revenue not to raise the issue of limitation, considering the time spent before the High Court and Supreme Court.

Conclusion:
The Supreme Court allowed the appeals in part, setting aside the High Court's judgment and orders. The appellant was directed to prefer statutory appeals with the condition of depositing Rs. 2.5 crores. The appeals were to be disposed of within three months, and the Court clarified that it had not expressed any opinion on the merits of the case. The Court also addressed the status of bank guarantees furnished by other appellants, providing specific directions based on whether the guarantees had been encashed.