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TMI Blog2017 (9) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Delhi-II has been filed. It states that after the above order was passed by this Court, the following instructions have been issued by Office Order dated 25th May, 2017: * "immediately stop the practice of collecting cheques from the assessee towards the payment of duty, even if the assessee intends to tender the said cheques voluntarily; * advise the assessee in cases of admitted or confirmed duty liability to deposit the duty electronically or by way of presentation of cheque in the designated bank within twenty-four hours and furnish the copy of the duty payment challan for the official record and further proceedings; * initiate action as provided in law against the delinquent assessee, in case the assessee fails to produce the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y when whole amount of differential duty was paid. 4.2 Under the facts and circumstances of the case, the statement of Sh. Rohit Jain, Director of the company, the statements of the officers, it appears that the assessee voluntarily tendered cheques as a security towards future revenue payment and the same were taken by the officers as a security 4.3 It appears that the actions taken by the officers at the time of visit to the factory appear to be best judgement in that particular situation where they could not have denied the assessee from availing facility provided vide Sections 11A and 11 AC of Central Excise Act, 1944 4.4 in view of above, the responsibility of accepting undated cheques from the assessee cannot be fixed on any indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiable Instruments Act 1888) could not, and in fact did not, constitute actual payment of duty which is what Section 11 A (1) (b) requires. There is no question, therefore, of this being treated as payment in terms of Section 11 A (1) (b) of the CE Act. The Court would further add that even for the purposes of Section 11 A (1) (b) the ascertainment of duty and the payment of such duty has to be preceded by orders in writing drawn up at the office of the antievasion wing and cannot and should not be 'on the spot'. The file should contain proceedings properly drawn up which records what has transpired. If there are to be independent witnesses to the proceedings at the time of visit and soon thereafter their signatures must be appended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 15th May 2017 that the panchnama drawn up in the present case at the time of the visit of the officers of the Anti-evasion wing of the Department to the premises of the Petitioner on 10th March 2017 records that 'post dated cheques‟were collected. That was a plainly incorrect statement. The report of the Superintendent (Vigilance) is silent on this aspect. 9. Another curious explanation now offered, and which has been accepted in para 4.2 of the above report, is that the cheques were "tendered as security towards future revenue payment and the same were taken by the officers as security." The Court has not been shown any statutory provision that permits officers of the anti-evasion wing to collect undated cheques from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Commission Act, 2003 (CVC Act) which delineates the functions and powers of the CVC. The Court directs that a copy of the affidavit be filed by the Revenue be served on the counsel for the CVC to examine if the report dated 25th May 2017 of the Superintendent (Vigilance) of the anti-evasion enclosed with it as Annexure A/2 discloses the commission of an offence which may be punishable under the Prevention of Corruption Act, 1988. A complete set of paper book of the present be supplied to the counsel for the CVC by the counsel for the Petitioner forthwith. 12. The Court wishes to draw the attention of the CVC to Sections 8 (1) (g) and (h) of the CVC Act and to the fact that are a growing number of instances of abuse of the powers of sea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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