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TMI Blog1991 (5) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... effected clearence of soft drinks on payment of 50% of the excise duty. During this period the Superintendent of Central Excise made endorsements in the RT 12 returns directing the appellants to make good the balance 50% subject to the orders of the High Court. The High Court vacated the stay on 26.2.1990. On 6.3.1990 the Superintendent called upon the appellants to pay the differential amount of Rs. 67,46,927.65 paise consequent upon the vacation of the stay order. The appellants challenged this communication on the ground that Section 11A procedure was not followed. The Collector (Appeals) dismissed the assessee s appeal holding that the lower authorities have only acted upon the order of the High Court of Andhra Pradesh and that the communication of the Superintendent is not an appealable decision or order in terms of Section 35 of the Central Excises and Salt Act, 1944. Hence this appeal. 2. We have heard Shri Prabhakara Sastry, the learned Counsel for the appellants and Shri Jayanarayanan Nair, the learned DR for the respondent. 3. The sole issue for consideration is whether the endorsement on the RT 12 returns is sufficient notice for the purpose of levy pursuant to vacat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for applying Sec. 11A of the Act. That section confers power upon the Central Excise Officer for recovery of duty - (i) not levied, or (ii) levied and not paid, or (iii) short levied, or (iv) short paid, or (v) erroneously refunded. It is not open to the appellants to contend that this is a case which will fall under the category of not paid or short paid because it stands to reason that in either of these two cases there must have been a levy. In this case there was no possibility for such a levy because of the order of injunction by the court." 4. In paragraph 19 the findings of the learned Single Judge has been set out as under: The liability to pay duty having been already establised by the disposal of the writ petition, the authorities are well within their jurisdiction to recover the amount straightaway from the petitioners in each writ petition and there is nothing left for them to decide where duty is payable or not. The present attempt made, if entertained, would only result in not only deliberate avoidance to pay duty, but would also amount to abuse of process of court, which cannot be encouraged. 5. To our minds the order supra squarely covers the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 987 (28) E.L.T. 53 (S.C.)J the demand of duty made by the department vide Superintendent s letter dated 6.3.1990 calling upon the appellants to pay the differential amount of Rs. 67,46,927.65p consequent upon the vacation of the stay order by the High Court ofAndhra Pradesh is bad in law inasmuch as Section 11A of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act) stipulates issuing of a show cause notice by the proper officer of Collector of Central Excise as the case may be. Since the letter of the Superintendent, urged the learned counsel for the appellants, could not be equated with the notice stipulated under Section 11A, the entire proceedings are vitiated. On a query from the Bench that the facts of Gokak Patel s case are different from the facts in the present case since in the said case before the Supreme Court no assessment of goods had taken place and the High Court had only stayed the collection of duty and not the assessment of the goods, the explanation to Section 11A did not come into operation at all. This is clear from the following observations in para 8 of the Supreme Court s judgment, mentioned supra :- The High Court having direct st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 11A. 10.1 In the case of Vipul Dyes relied upon the learned-counsel, facts are as follows :- The appellants therein were engaged in the manufacture of Synthetic Organic Dye Stuffs falling under T.I. 14-D CET. Some of the dye stuffs were exempt from payment of excise duty in terms of Notification No. 180/61 dt. 23-11-1961. However, with the issue of Notification No. 71/78 dt.1-3-1978 the appellants Vipul Dyes became eligible for duty exemption on all SOD stuffs manfactured by them subject to certain conditions. One of the conditions was that during the financial year the total value of the clearances eligible for exemption should not exceed Rs. 5 lacs. The notification did not contain specific provision as to whether the value of clearances of duty in terms of Notification No. 180/61 dt. 23-11-1961 were to be included or excluded from the said figure of Rs. 5 lacs in terms of Notification No. 71/78 dt. 1-3-1978. The Superintendent of Central Excise assessed the R.T. 12 returns filed by the appellants, Vipul Dyes pointing out the short assessment and demanding payment of short recoveries. It is in the above circumstances that it was held that demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the learned counsel. The goods were assessed in the first instance under Tariff Item 68 as per the classification list. Later on the department sought to change the classification at higher rate of duty under Tariff Item 23A(4). 11. In the instant case we find that the classification list had been filed by the appellants herein taking into account the effect of Notification No. 203/87. The department was merely assessing the goods in terms of the approved classification list. There was no dispute so far as the rate of duty was concerned between the department and the appellants calling upon for issuing of any notice for making a proper assessment. The appellants had only challenged the Notification No. 203/87 dated 9-9-1987 on the ground of its unconstitutionality. There was no dispute whatsoever of the construction of the said notification between the assessing authorities and the appellants. It is only when there is a dispute about the construction of a provision of law between an assessing authority and an assessee that the rule of justice require that notice thereof should be issued to the assessee before the assessment is finalised. It is this rule of natural justice w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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