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TMI Blog2020 (2) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... or short levied or short paid by the Assessees or or erroneously refunded to be recalled by the Adjudicating Authority and after issuance of appropriate notice, the proceedings under Section 11A can be decided by the Authority concerned. The suo motu power of the Principal Commissioner of Central Excise or Committee of Chief Commissioners, with effect from the amended provisions of Finance Act, 2005 dated 13.5.2005 deals with the revisional powers conferred upon such Committee to call upon and examine the record of any proceedings in which a lower Authority, as an Adjudicating Authority, has passed any decision or order under the said Act for the purpose of satisfying the said higher Authority as to the legality or propriety of such decision or order and such higher Authority, by an appropriate order, direct the lower Authority to pass appropriate orders in accordance with the directions given in such orders passed under Section 35E of the Act. If the exercise of jurisdiction under Section 11A of the Act was to be hooked or hinged upon the provisions of Section 35E of the Act, that would frustrate the very provisions of Section 11A of the Act, in our opinion. Section 11A of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atch of Writ Petitions filed by the Assessee Companies and directed the Assessee Companies to appear before the Assessing Authority and show cause in pursuance of the impugned show cause notice issued to the Assessee Companies for recall of the earlier orders by which certain refunds were granted to the Assessee Companies which were erroneous refunds, in the opinion of the Adjudicating Authority, invoking Section 11A of the Central Sales Tax Act. 2. The observation made by the learned Single Judge for rejecting the Writ Petitions are quoted below for ready reference:- 33. This takes us to the scope of exercise of writ jurisdiction when SCNs are challenged. No elaboration is required to say that the scope of interference in writ jurisdiction is very limited when SCNs are called in question. The exceptions to this rule are very few and in the instant case, as alluded to supra, the exception was projected on the basis of jurisdictional fact. As jurisdictional fact, i.e., preferring an appeal against OIO has been answered against writ petitioners, it follows as a sequitter that this case does not fall in any of the exceptions to the rule of limited and restricted exercise of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the Appellant/Assessee vehemently urged before us that the impugned show cause notice was issued by the Authority without jurisdiction as the refunds in question were granted to the Assessee Companies by proper speaking adjudicating orders and therefore, the same Authority could not issue the impugned show cause notice holding such refunds to be erroneously granted to the Assessee Companies and without subjecting those adjudicating orders, to further orders by the higher Authority under Section 35E of the Act, the impugned notices issued under Section 11A of the Act could not have been issued by the Authority concerned. Hence, the Writ Petitions were maintainable before the learned Single Judge and deservd to be allowed. Therefore, the present Appeals filed by the Assessee Companies deserve to be allowed. 4. The learned counsel for the Appellant/Assessee relied upon the following judgments to support his aforesaid contention:- i) Eveready Industries India Ltd. v. CESTAT, Chennai (2016(337) ELT 189 (Mad)). ii) Commissioner of Central Excise v. Pricol Ltd. (2015 (320) ELT 703(Mad)). iii) Madurai Power Corporation (P) Ltd. v. Deputy Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at the preliminary stage of show cause notice to the Assessee Companies. 9. We find no merit in the contention raised by the learned counsel for the Assessee Companies that without the intervention of the higher Authorities under Section 35E of the Act, the Adjudicating Authority himself could not issue the impugned show cause notice under Section 11A of the Act. 10. On a bare reading of the Scheme of Central Excise Act, 1944 in Chapter II dealing with levy of collection of Duty comprising from Section 3 to 12, we find that the said Chapter contains the provisions relating to charging provisions, Valuation, Assessment and Penalty etc. Section 11A in the said Chapter II pertaining to levy in collection of Duty provides for recovery of Duties not levied or not paid or short levied or short paid by the Assessees or or erroneously refunded to be recalled by the Adjudicating Authority and after issuance of appropriate notice, the proceedings under Section 11A can be decided by the Authority concerned. Relevant portion Section 11A of the Act is quoted below for ready reference:- 11A. Recovery of duties not levied are not paid or short levied or short paid or erroneously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting him to show cause why we should not pay the amount specified in the notice along with interest payable thereon under section 11AA and a penalty equivalent to the duty specified in the notice. 11. As against the said provisions Section 11A of the Act, Section 35E of the Act, relied upon by the learned counsel for the Appellant, is also quoted below for ready reference:- 35E. Power of Committee of Chief Commissioners of Central Excise or Principal Commissioner of Central Excise or Commissioner of Central Excise to pass certain orders (1) The Committee of Chief Commissioner of Central Excise may, of its own motion, call for and examine the record of any proceeding in which a Principal Commissioner of Central Excise or Commissioner of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. PROVIDED t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord of any proceedings in which a lower Authority, as an Adjudicating Authority, has passed any decision or order under the said Act for the purpose of satisfying the said higher Authority as to the legality or propriety of such decision or order and such higher Authority, by an appropriate order, direct the lower Authority to pass appropriate orders in accordance with the directions given in such orders passed under Section 35E of the Act. 13. This is a usual revisional power conferred on the higher Authority of the Revenue to supervise and monitor the proceedings and decision of the lower Authority to protect the interest of the Revenue. The powers under Section 11A of the Act conferred upon the Adjudicating Authority himself do not depend, in any manner, upon the exercise of revisional power under under Section 35E of the Act. The contention of the learned counsel for the Appellant/Assessee is, therefore, fallacious and contrary to the bare reading of the provisions of the Act itself. 14. If the exercise of jurisdiction under Section 11A of the Act was to be hooked or hinged upon the provisions of Section 35E of the Act, that would frustrate the very provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to duties. One is non-levy, the second is short-levy and the third is erroneous refund. Levy is linked to assessment. Section 17 of the Act speaks of assessment order. In the process of assessment two kinds of errors may occur. One is non-levy and the other is short-levy. Refund is dealt with in Section 27 of the Act. The expression erroneously refunded means refunded by means of an order which is erroneously made. These are three categories of errors in regard to duties. ... .... 24. The appellant's prayers for writs of certiorari and mandamus are misconceived. There is no order either judicial or quasi-judicial which can attract certiorari. No mandamus can go because there is nothing which required to be done or forborne under the Act. The issue of the notice in the present case requires the parties to represent their case, there is no scope for mandamus to do any duty or act under the statue. A writ of prohibition cannot be issued for the obvious reason that the Central Government has jurisdiction to revise. 18. Thus, the aforesaid Judgments also holds that the Assessee's prayers for writ of certiorari and mandamus in such cases was misconceived. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een from the language employed in Section 35E, which we have extracted above, a limited revisional jurisdiction is conferred upon the Principal Commissioner and Commissioner of Excise in sub-section (2) of Section 35E. This power is not actually to correct any error directly, on the path of adjudicating authority. This power is available only for directing be Competent Authority to take the matter to the Commissioner (Appeals). 39. Therefore, it was always open to the Principal Commissioner or the Commissioner of Central Excise to examine the order of the adjudicating authority namely the Assistant Commissioner in the proceedings under Section 11B and to give a direction to the Competent Authority to file an appeal against the order of refund under Section 11B, to the Commissioner of Appeals under Section 35. This was not done in this case. On the contrary, the authorities allowed the order to be passed in Appeal No.206/98, dated 30-11-1998 on the basis of the refund already made. 21. There are no such facts available in the present cases before us. In that case, though the lower Authority has issued an impugned show cause notice under Section 11A of the Act after, by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ineffective, which would be impermissible. 2. The apples are dismissed with costs. 25. Therefore, in view of the aforesaid, we are of the clear opinion that the learned Single Judge was perfectly justified in relegating the Petitioner/ Assessee before the Authority concerned, who issued the impugned show cause notices where the Assessee had to avail the opportunity to show cause before the Authority concerned that the refund in question was not erroneously made earlier so as to justify a recall or refund back to the Department under Section 11A of the Act. 26. Without showing cause before the Authority concerned himself and directly approaching the Writ Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India, in our opinion, is nothing, but an abuse of process of law. The Constitutional Courts, in the absence of proper factual foundation and findings, should not be flooded with premature Writ Petitions and such practice on the part of the Assessees deserves to be strongly put down with the iron hands of justice. 27. The multiplicity of cases in the Constitutional Courts takes years to even send back the Assessee to square One, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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