2022 (7) TMI 47 - HC - Central Excise

Court rules against CGST authority in recovery dispute under Central Excise Act

Haldia Petrochemicals Limited Versus Assistant Commissioner, CGST & CX, Haldia-II Division, Haldia Commissionerate And Ors.

Haldia Petrochemicals Limited Versus Assistant Commissioner, CGST & CX, Haldia-II Division, Haldia Commissionerate And Ors. - TMI Issues Involved:1. Whether the respondent Central Excise Authority can recover demand relating to central excise duty, interest, and penalty without service of the adjudication order and without proof of such service in compliance with Section 37C of the Central Excise Act, 1944.2. Whether the respondent CGST authority can recover amounts in excess of the statutory amount required to be deposited when filing an appeal against the adjudication order.3. Whether the respondent authorities' actions of adjusting another refund with the demand in question and attaching the petitioner's bank account were lawful.Detailed Analysis:Issue 1: Recovery without Service of Adjudication OrderThe petitioner argued that the adjudication order dated 17th October 2012, which formed the basis of the impugned demand, was never served upon them. The petitioner claimed they did not receive any further notice or order after their personal hearing on 25th July 2012. Despite repeated requests for a copy of the adjudication order, the respondent authorities failed to provide it or any proof of its delivery. The respondents, in their affidavit-in-opposition, could not produce any document from the postal authorities confirming the actual delivery of the adjudication order. The court emphasized that Section 37C of the Central Excise Act, 1944, mandates that orders must be sent by registered post with acknowledgment due, which was not complied with by the respondents. Consequently, the court ruled that without proof of service, the recovery actions based on the adjudication order were invalid.Issue 2: Recovery Amount in Excess of Statutory DepositThe petitioner challenged the recovery of amounts exceeding the statutory pre-deposit required for filing an appeal against the adjudication order. The petitioner highlighted that they made a statutory pre-deposit of 7.5% of the disputed duty before filing the appeal. The court noted that the relevant circulars and legal precedents restrict recovery to the pre-deposit amount during the pendency of an appeal. The court referenced decisions such as H.M. Leisure V State of West Bengal and Graphite India Ltd. V Deputy Commissioner of Income Tax, which support the principle that excess recovery must be refunded. The court declared the respondents' action of recovering more than the statutory pre-deposit amount as arbitrary and illegal.Issue 3: Adjustment of Refund and Attachment of Bank AccountThe petitioner contended that the respondents adjusted a refund due to them against the demand arising from the unserved adjudication order and subsequently attached their bank account. The court found these actions unjustified, especially since the adjudication order was not properly served, and the petitioner had already made the necessary pre-deposit for filing an appeal. The court directed the respondents to refund the excess amount recovered and withdraw the bank account attachment.Conclusion:The court concluded that the respondent authorities acted improperly by attempting to recover demands based on an unserved adjudication order and by recovering amounts exceeding the statutory pre-deposit required for an appeal. The court ordered the respondents to refund the excess recovered amount and lift the bank account attachment. The appellate authority was requested to expedite the disposal of the appeal within three months. The writ petition was disposed of with no order as to costs, and urgent certified photocopies of the judgment were to be provided upon compliance with requisite formalities.