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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 ..... pellant on merits. CESTAT has held that as Writ Petition has been dismissed it cannot go into question of legality of the demand made by the said letter DD2. According to us, the said approach of CESTAT is completely erroneous. There is no option but to set aside the impugned judgment and order and to remand the Appeals to the CESTAT for deciding the same on merits - matter restored. - CENTRAL EXCISE APPEAL NO. 77 OF 2007 WITH CENTRAL EXCISE APPEAL NO. 78 OF 2007 - - - Dated:- 20-9-2017 - A.S. OKA AND RIYAZ I. CHAGLA, JJ. Mr. Anupam Dighe, i/b Mr. P.V. Patankar for the Appellant Ms. P.S. Cardoza, for the Respondent. ORAL JUDGMENT (Per A.S. Oka, J.) 1. The submissions of the learned counsel appearing for the parties were heard yesterday. The Appeals were admitted on 14th February 2008. As the facts of the Appeals are more or less similar, the Appeals have been admitted on the same substantial questions of 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 Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ₹ 5,06,056/- (duty ₹ 1,87,295.00 + Interest ₹ 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. amn. In Rs. Int. worked out as per Notfn. No. 187295 29.05.95 to 31.12.95 217 '20% 22270.14 21/95 dt.29.05.95 01.01.96 to 31.12.01 6 '20% 224754 21/95 dt.29.05.95 01.01.02 to 12.05.02 132 '20% 13546.82 21/95 dt.29.05.95 13.05.02 to 31.12.02 235 '15% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst submission of the learned counsel appearing for the Appellant is that order of dismissal of the Writ Petition for non-prosecution will not operate as res judicata or it will not be governed by principles analogous to res judicata. His submission is that as the demand made by the said letter DD2 was null and void, the Appellant was entitled to raise said contention in the Appeal before CESTAT. He submitted that the letter DD2 was issued without issuing a show cause notice under Section 11A(1) of the Central Excise Act, 1944 (for short said Act ) and without determination of Central Excise duty. He submitted that in any event, by taking recourse to Section 142 of the Customs Act, 1944 (for short Customs Act ), set off of the amount payable under letter DD2 could not have been ordered as by virtue of the Notification issued by Central Government only Clause (b) and sub-clause (ii) of Clause (c) of sub-section (1) of Section 142 of the Customs Act, 1962 were made applicable to the payment of excise duty under the Central Excise Act, 1944. 6. The submission of the learned counsel appearing for the Respondent is that as the Writ Petition challenging demand made by the letter DD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Under Section 142 of the Customs Act, there is a provision 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. Therefore, the issue of applicability of Section 142 of the Customs Act or the issue of the power of the Assistant Commissioner of ordering the set off ought to have been decided by CESTAT. 11. Perusal of the impugned order of CESTAT shows that the said Tribunal was impressed by the order of dismissal of Writ Petition filed by the Appellant for challenging demand made by the said let ..... X X X X Extracts X X X X X X X X Extracts X X X X
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