Poly Tex Industries vs The Assistant Commissioner of Central Exercise and Others

Vinod K. Sharma, J.—The Petitioner has invoked the writ jurisdiction of this Court with a prayer for issuance of a writ in the nature of Certiorari for quashing the notice, dated 18.10.2004 and 05.10.2005, demanding interest on delayed payment of duty assessed under the Central Excise Act.

The Petitioner has also challenged the order dated 1.2.2006 attaching the property for recovery of the demanded amount.

The impugned order reads as under:

Shri M. Sahul Hamee, S/o.Md.Sheik Dawood, (Partner M/S. Poly Tex Industries) 3/47,North Main Road, Krishna pattinam

Gentleman,

Sub: Arrears of Revenue of 590859/-Initiation of action u/s 11of the Central Excise Act,1944 -Issue of Notice-Regarding.

Please take notice that a letter O.C. No. 859/2004, dated 27.7.2004 has been forwarded by the Super intendent of Central Excise, Pudukkottai to the Assistant Commissioner of Central Excise,Thanjavur for recovery of interest amount of Rs. 590859/-(Rupees Five Lakhs eight hundred and fifty nine only) arising u/s 11 AA of the Central Excise Act, 1944 on delayed payment of duty as per OIO No. 24/1994 dated 2.9.1994 of the Commissioner of Central Excise,Trichy.

You are hereby required to pay the amount aforesaid within seven days from the date of service of this notice.

You are hereby informed that in case of default, steps would be taken to realize the amountunder Section 11 of the Central Excise Act, 1944 read with Section 142(1)(c)(ii) of Customs Act, 1962 read with Rule 4 of the Customs (Attachment of Property of Defaulters for the recovery of Government Dues) Rules 1995 as made applicable to Central Excise matters by Notification No. 68/63CE, dated 4.5.1963.

In Addition to the amount afore said you will also be liable for all cost, charges and expenses incurred in respect of the service of this notice and of warrants and other process and of all other proceedings taken for realizing the arrears.

(V. RAJAPPA) ASSITANT COMMISSIONER

The Petitioner challenged, the impugned notices as well as the order of attachment, on the ground that these are without jurisdiction inasmuch as Sections 11A and 11B was enforced vide Finance(No. 2) Bill of 1996, whereas, the assessment in the case of the Petitioner was completed on 22.07.1994.

It is the case of the Petitioner that the adjudicated amount stood paid, before the Finance(No. 2)Bill,1996.

In support of his contention, that the impugned notices and order are without jurisdiction, as the provisions of Section 11A and 11B of the Act has No. retrospective effect, placed reliance on the judgement of the Honourable Division Bench of this Court in the case of Commissioner of Central Excise, Coimbatore.v. CEGAT, Chennai reportedin, 2005 (183) ELT 343 , wherein, the Honourable Division Bench of this Court laid down, as under:

"REPRESENTED BY: Shri K.Veeraraghavan, ACGSC, for the Petitioner.

(Order per: R.Jayasimha Babu,J) -We have heard the learned Additional Central Government Standing Counsel. We see No. error in theorder of theCustoms Excise and Gold(Control)AppellateTribunal, declining to make a reference at the instance of the revenue, on the question of the liability of the Assessee or payment of penal interest underSection11AB ofCentralExciseAct.

It has been found by the Tribunal that the clearance were madebytheAssesseeduringtheperiodfromSeptember1995 toJanuary 1996. The law in force at the time did not permit the levy of penal interest. Such a levy came to be imposed only after passing of Finance (No. 2)Bill, 1996 which received the presidential as sent on 28.09.1996. It is evident that the amendment was effected several months after the goods had been cleared. It has been rightly held by the Tribunal, that the Assessee can not be subjected to penallevy which was not inexistence at the time the learance were effected.The fact that the demand was confirmed by the Commissioner after the law was amended, does not enable the revenue to impose penal interest, and the law which was required to be applied was the law that existed at the time of clearances, unless the law subsequently amended had expressly been given retros pective effect.

This Petition,therefore,isdismissed.

The learned Counsel appearing for the Union of India supported, the order on the ground that the demand has been raised after coming into force of Section 11A and 11B of the Central Excise Act therefore, it cannot be said to be bad.

On consideration, I find force in the contention of the learned Counsel for the Petitioner. Once the assessment was completed on 22.07.1994, the provision brought in force by the Act,1996 will have No. application to already adjudicated assessments.

The quantum raised in this petition is covered, by decision of this Court in the case of Commissioner of Central Exercise,Coimbatore(Supra).

The learned Counsel for the Respondents 1 to 4 contends that as the Petitioner has already paid part of the amount therefore is estopped to challenge the impugned orders.

This contention of the learned Counsel for the Respondents 1 to 4 is totally misconceived, and it is well settled law, that there is No. estoppel against the Law.

Once under law the tax is not recoverable, it cannot be justified merely because the party has paid some amount to avoid penal action.

Consequently, the Writ Petition is allowed and the impugned notices claiming penal interest and attachment order are ordered to be quashed. The amount already paid by the Petitioner is directed to be refunded to the Petitioner, within four weeks of the receipt of certified copy of this order. No. costs.