2019 (7) TMI 568 - HC - Central Excise

Reclassification of Di-Calcium Phosphate under Chapter 28 Heading No.2835 25 00 instead of Chapter 23 Heading No.2309 90 90 of the Central Excise Tariff Act, 1985 - period of November 2011 to January 2014 - HELD THAT - Indisputably, no fault can be found with the impugned orders passed by the Assistant Commissioner or orders of the Commissioner (Appeals) dismissing the petitioner's appeals. However, the fact that notification has been issued under Section 11C of the Act directing the Officers of the department not to recover the duty on Di-Calcium Phosphate for the period 1st February 2008 to 1st February 2014 which would include the period for which the duty has been confirmed by the two impugned orders. In the face of notification No. 4 of 2016C. E. (N.T.) dated 12th February 2016, the Revenue cannot recover the amounts which have been confirmed by the two impugned orders. However, as yet no recovery proceedings have been taken against the respondent consequent to the two impugned orders and therefore, at this stage, the present petition is premature - At this stage, the petition is not justified as there is no action is taken by the Revenue in the face of notification issued under Section 11C of the Act. Petition disposed off.

Summary

Issues:
Challenge to orders under Central Excise Act, 1944 for reclassification of Di-Calcium Phosphate; Dismissal of appeals by Commissioner of Central Excise (Appeals) based on limitation; Issuance of notification under Section 11C of the Act exempting Di-Calcium Phosphate from excise duty for a specific period; Question of recovery of duty confirmed by impugned orders in light of the notification.

Analysis:
The petition under Article 226 challenges orders reclassifying Di-Calcium Phosphate under the Central Excise Act, 1944. The petitioner's appeals before the Commissioner of Central Excise (Appeals) were dismissed as time-barred. The challenge is based on the issuance of a notification under Section 11C of the Act exempting Di-Calcium Phosphate from excise duty for a specific period. The impugned orders confirmed the demand for the period in question. However, the High Court notes that the notification directs the department not to recover duty for the same period, creating a conflict.

The High Court observes that while the impugned orders are valid, the notification prevents the recovery of the duty confirmed by those orders. As no recovery proceedings have been initiated yet, the petition is deemed premature. The court indicates that if the Revenue decides to recover the demands in the future, the petitioner can challenge it at that time. The court refrains from expressing an opinion on the potential recovery notice under Section 11C of the Act, as it is not relevant at the current stage.

In conclusion, the High Court disposes of the petition, granting the petitioner the liberty to challenge any future recovery proceedings by the Revenue. The court emphasizes that no action has been taken by the Revenue so far in light of the notification exempting Di-Calcium Phosphate from duty for the relevant period. The judgment clarifies that the court has not assessed the merits of any potential recovery notice under Section 11C, as it is not applicable to the current circumstances.