1996 (7) TMI 326 - AT - Central Excise

High Court rules on absence of machinery provisions in recovery proceedings under Section 11D

The High Court held that the absence of machinery provisions for adjudication under Section 11D precluded the recovery proceedings initiated by the ... Recovery of the extra amount Issues:Recovery of amount collected by appellants before the decision on assessable value. Interpretation of Section 11D for recovery. Validity of Section 11D. Lack of machinery provisions for adjudication under Section 11D.Analysis:The appeals before the Appellate Tribunal CEGAT, Madras involved the issue of recovery of amounts collected by the appellants before the decision on assessable value was made. The proceedings were initiated against the appellants based on the assumption that their sales to distributors were to related persons under Section 4(4)(d)(i). To protect themselves, the appellants collected an amount equivalent to the duty that would be payable if their sales were deemed to be to related persons. Subsequently, Section 11D was introduced, leading to the department initiating recovery proceedings for the extra amounts collected. The department included the extra amount in the assessable value under Section 4(4)(d)(i) and paid the duty on this excess amount. The key issue was whether the amount collected could be considered as duty under CESA for recovery under Section 11D. The High Court of Madras had previously held that the recoveries under Section 11D could not be made due to the absence of machinery provisions for adjudication.The High Court's decision emphasized that Section 11D dealt with a distinct claim related to duty exigible under the Act, lacking machinery provisions for assessment or adjudication. The court declared that the impugned proceedings for recovery were without jurisdiction and quashed them. However, it clarified that the statutory liability to pay any amount collected as duty of excise to the Central Government was preserved and not undermined. The court allowed the writ petitions on the ground of lack of authority in issuing the notices but maintained the liability under Section 11D to be adjudicated and enforced in accordance with law. The absence of machinery provisions did not negate the liability, which would subsist until properly quantified and enforced or until becoming time-barred.In light of the High Court's decision and the lack of contrary judgments, the Appellate Tribunal set aside the lower authority's order and directed that the matter remain pending with the original authority until action could be taken in accordance with the High Court's decision. The appeal was disposed of based on the High Court's ruling, indicating that the recovery proceedings could not proceed due to the absence of machinery provisions for adjudication under Section 11D.