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TMI Blog2011 (6) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents before us to deposit 50% of the amount so demanded and as suggested by the learned Counsel appearing for the parties, instead of remanding the matter back, we decided to hear out the writ application itself, as this writ application can be disposed of on a pure question of law. 2. Consequently, we heard the learned Counsel appearing for the parties on the merit of the writ application itself and propose to dispose of this appeal on merit. 3. In the writ application, the writ petitioners challenged a demand in the form of a letter dated 22nd May, 2008 (Annexure P-17) by which the Superintendent of Central Excise demanded interest in terms of Section 11AA of the Central Excise Act, 1944 (Act) amounting to ₹ 1,41, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the existence of the alternative remedy, a Writ Court is quite competent to entertain a writ application challenging such illegal demand. Mr. Bajoria, therefore, prays for entering into the question whether such demand was within the scope of the Act. 9. After hearing the learned Counsel appearing for the parties and after taking into consideration the well-settled proposition of law that notwithstanding the existence of an alternative remedy, a Writ Court is not powerless to entertain a writ-application, particularly when the order challenged in the writ application is alleged to be without jurisdiction at the instance of a State within the meaning of Article 12 of the Constitution of India, we have turned down the aforesaid prel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary, 1987 and directed the assessee to make payment of the aforesaid amount within 15 days from the date of receipt of the said order. 14. Subsequently, as pointed out above, the demand of interest was made under Section 11AA of the Act by not considering the order dated 30th January, 2004 as the original order, but by treating the order of 3rd July, 1995, which had since been set aside by the learned Tribunal, as the original order. 15. Mr. Bajoria, learned Senior Advocate appearing on behalf of the writ petitioners/respondents, has, in this connection, placed strong reliance upon the provision contained in Section 11AA of the Act, as it stood at the relevant time, and submitted before us that in this case, after setting aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after three months from such date, till the date of payment of such duty. Explanation 1. - Where the duty determined to be payable is reduced by the Commissioner (Appeals), Appellate Tribunal (National Tax Tribunal) or as the case may be, the court, the date of such determination shall be the date on which an amount of duty is first determined to be payable. Explanation 2. - Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), Appellate Tribunal (National Tax Tribunal) or as the case may be, the court, the date of such determination shall be - (a) for the amount of duty first determined to be payable, the date on which the duty is so determined; (b) for the amount of increased duty, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppreciate that the previous order setting aside the original order of assessment and directing for recalculation could not be treated to be a case of reduction of the original amount within the meaning of the Explanation-I of Section 11AA(1) of the Act and as such, the order dated 30th January, 2004 should be treated to be the date of the original determination for the purpose of Section 11AA. 19. We, therefore, find that the Revenue acted without jurisdiction in demanding interest in terms of Section 11AA of the Act, although there is specific bar created under sub-section (2) of Section 11AA. 20. Mr. Bharadwaj, at this stage, as a last resort, tried to convince us that the exercise of jurisdiction by a Taxing Authority in misi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 of the Constitution of India is very much maintainable. 26. We, thus, find that the Revenue Authority acted without jurisdiction in demanding interest, although the law does not permit such authority to invoke Section 11AA of the Act. 27. We, thus, set aside the demand and allow the writ application. Let there be an order in terms of prayers (a) and (d) of the writ application and whatever amount has been received by the Revenue pursuant to the demand which we have quashed, be refunded to the writ petitioners/respondents within two months from today. The Revenue is also directed to refund the amount that has been paid by the respondents pursuant to our order dated 9th June, 2011 in this appeal within the aforesaid pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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