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2017 (12) TMI 1230 - HC - Central ExciseWhether the amount demanded by the Superintendent of Central Excise as duty of Central Excise by a mere letter DD2 without issuance of Show Cause Notice under Section 11A (1) of the Central Excise Act, 1944 and without determination of the Central Excise duty due under Section 11A (2) of the Central Excise Act, 1944 and without granting any opportunity of being heard in the matter is an amount which can be recovered as Government dues under Section 142 of the Customs Act, 1962 as Central Excise duty due to the Government? Held that - under Section 142 of the Customs Act, there is a provision authorising authorities under the Customs Act to deduct any sum payable by any person under the Customs Act while ordering payment of any amount under the provisions of the said Act - Perusal of the impugned order of CESTAT shows that the said Tribunal was impressed by the order of dismissal of Writ Petition filed by the Appellant for challenging demand made by the said letter DD2. The CESTAT has not decided the contentions raised by the Appellant on merits. CESTAT has held that as Writ Petition has been dismissed it cannot go into question of legality of the demand made by the said letter DD2. According to us, the said approach of CESTAT is completely erroneous. There is no option but to set aside the impugned judgment and order and to remand the Appeals to the CESTAT for deciding the same on merits - matter restored.
Issues involved:
1. Demand of Central Excise duty without issuance of Show Cause Notice 2. Adjustment of duty against sanctioned rebate claim 3. Charging interest on the demand of duty Analysis: Issue 1: Demand of Central Excise duty without issuance of Show Cause Notice The case involved a demand made by the Superintendent of Central Excise through a letter DD2 without following the procedure of issuing a Show Cause Notice under Section 11A(1) of the Central Excise Act, 1944. The Appellant challenged the validity of this demand, arguing that it was null and void. The High Court held that the Appellant was entitled to raise this contention as the demand made by the letter DD2 was void ab initio. The Court cited established legal principles that a void order can be challenged in collateral proceedings without the need for a specific declaration. The Court criticized the CESTAT for not addressing this contention on its merits and remanded the case for further consideration. Issue 2: Adjustment of duty against sanctioned rebate claim The Assistant Commissioner had directed the set off of the balance amount due against the sanctioned rebate claim of the Appellant. The Appellant contested this decision, arguing that such a set off could only be ordered if there was a statutory power allowing it. Section 142 of the Customs Act provides authorities with the power to deduct sums payable under the Act while ordering payment under its provisions. The Appellant contended that specific provisions of the Customs Act were not applicable in this case. The Court noted that this issue had not been adequately addressed by the CESTAT and required further examination. Issue 3: Charging interest on the demand of duty The Appellant also raised concerns regarding the charging of interest on the demand of duty made under the DD2 letter. The Court did not delve deeply into this issue but highlighted that the CESTAT's approach of not considering the legality of the demand due to the dismissal of the Writ Petition was incorrect. The Court set aside the CESTAT's judgment and ordered a fresh consideration of the case on its merits. In conclusion, the High Court found deficiencies in the CESTAT's handling of the case and remanded it for a thorough examination of the issues raised by the Appellant. The Court emphasized the importance of addressing the legality of the demand and the power to set off amounts due against rebate claims in accordance with the relevant legal provisions.
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