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TMI Blog2017 (12) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... f law. The Appeals have been admitted on the following substantial questions of law:- (i) Whether 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? (ii) Whether in the facts and circumstances of the case and in law the demand of duty under the said DD2 dated 3rd September 1986 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elapur sanctioned the rebate claim of Rs. 3,92,939/-. However in the operative part, he issued following directions: O R D E R In view of the above I hereby sanctioned the rebate amount of Rs. 3,92,939/- (Rupees three lacs ninety two thousand nine hundred thirty nine only) to M/s. Mukund Ltd., Thane. However, I find that there is a Govt. dues amounting to Rs. 5,06,056/- (duty Rs. 1,87,295.00 + Interest Rs. 3,18,761.00) as listed below arisen out of DD2 dated 03.09.1986 are still pending against them. The Hon'ble Bombay High Court has dismissed the assessee's Writ Petition No. 1299 of 1986 on 04.10.1999 against said DD2 dated 03.09.1986. Dues pending amt. In Rs. Periods (29.05.95 to 07.06.04) Days Rate of Int. @ Int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rupees seventy four thousand one hundred seventy eight only) shall be paid in cash through cheque after adjustment of Govt. dues from sanctioned rebate amount. (Underline supplied) 4. Being aggrieved by the second part of the said order dated 7th June 2004, an Appeal was preferred by the Appellant before the Commissioner (Appeals), Central Excise Mumbai- II. By the Order-in-Appeal dated 19th November 2004, the said Appeal was dismissed. Being aggrieved by the said order, the Appellant preferred an Appeal before the Customs, Excise and Service Tax Appellate Tribunal (for short "CESTAT") Mumbai. By the impugned judgment and order, the said Appeal as well as Appeal which is the subject matter of companion Appeal No. 78 of 2007 were dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of Rs. 7 lakhs as per the interim order passed in the said Writ Petition. She submits that the fact that the direction is issued by Division Bench of this Court to deposit Rs. 7 lakhs shows that the Division Bench was satisfied that prima facie, there was a merit in the demand made by the letter DD2. 7. We have considered submissions. Perusal of the impugned judgment and order of CESTAT shows that a specific contention was raised that the demand made by the letter DD2 was nullity and was not executable and hence, the balance amount payable as per the said letter could not have been set off against the rebate claim of the Appellant. The law on this aspect is well settled. If an order is wholly without jurisdiction and void, for avoidin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. The submission of the learned counsel appearing for the Appellant based on a Notification is that provisions of only clause (b) and sub-clause (ii) of clause (c) of Sub Section (1) of Section 142 of the Customs Act have been made applicable to the provisions of the Central Excise Act, 1944 and in the facts of the case, both the clause (b) and sub clause(ii) of clause (c) of Sub Section (1) of Section 142 of Customs Act are not applicable. 10. Before Commissioner (Appeals) and CESTAT, the issue of the validity of directions issued for set off was raised. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs permitted to be withdrawn by the revenue. 14. Hence, we dispose of the Appeals by passing following order: (a) The impugned judgment and order dated 30th March 2006 is hereby set aside and the Appeals Nos. E/490 & 491 / 05 are restored to the file of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai; (b) The Appeals shall be decided afresh in accordance with law in the light of the findings recorded in this judgment; (c) Considering the fact the Appeals are of year 2005, we are sure that the Tribunal will give necessary priority to the disposal of the said Appeals; (d) Appeals are partly allowed on the above terms with no order as to costs; (e) The Prothonotary and Senior Master of this Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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