Pragati Udyog vs Assistant Commissioner of Central Excise and Service Tax

Heard learned counsel for the petitioners and learned counsel for the respondent. This petition is filed under article 226 of the Constitution of India.

The petitioners are seeking an appropriate writ directing for quashing and setting aside three communications, two dated December 5, 2012 and the third dated December 6, 2012.

The grievance of the petitioners is that the said order and direction has been made by the Assistant Commissioner of Central Excise and Service Tax purportedly u/s 11 of the Central Excise Act, 1944. It is submitted that the Assistant Commissioner can exercise powers u/s 11 of the said Act provided the sum which is recoverable or due is in his hand or under his disposal or control. It is submitted that in the impugned communications this crucial aspect is not mentioned and the order does not specify that the said amount which is recoverable is in his hand or is under his disposal or control. It is, therefore, submitted that the said order, therefore, is ex facie illegal and liable to be dismissed.

The learned counsel appearing on behalf of the respondent submits that the said crucial aspect has not been referred to in the said communications and therefore, submits that appropriate order may be passed reserving the right of exercising authority to recover the said sum from one of the partners of the firm.

Perusal of the impugned order reveals that the Assistant Commissioner in the three communications does not mention that the said amount is in his hands or under his disposal or control and as such, the Assistant Commissioner could not have, therefore, exercised the powers vested in him u/s 11 of the said Act. The impugned communications are, therefore, liable to be set aside.

Needless to mention that the respondent shall be at liberty to recover the said amounts allegedly due from one of the partners of the firm, Mr. Pankaj Jaju, in accordance with law. The petition is accordingly allowed and disposed of.