TaxTMI 
TaxTMI 
2011 (3) TMI 11
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....bstantial question of law arises out of the order dated 18.6.2004 passed by the Customs, Excise & Service Tax Appellate Tribunal, East Zone Bench, Calcutta (for short CESTAT) in Appeal No.EDM-472/2003. 2. Broadly, the assessee had set up a unit for the purposes of manufacturing tea. In terms of Notification No.33/99-CE dated 8.7.1999 exemption from duty was granted to units set up in the North East after 24.12.1997 and also to existing units making an expansion of 25% or more of the installed capacity. According to the assessee, it had increased its installed capacity by more than 25% and therefore, claimed the benefit of Notification No.33/99-CE dated 8.7.1999. 3. The entitlement of the benefit to the assessee came to be considered b....
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....st on the amount should be paid by the assessee. 7. Feeling aggrieved, the assessee preferred an appeal before the CESTAT which passed an order dated 18.6.2004 which is under consideration in this appeal. The CESTAT came to the conclusion that the appropriate course of action for the Revenue would have been to challenge the initial order dated 29.4.2002 passed by the Assistant Commissioner of Central Excise, Silchar whereby the assessee was given the benefit of Notification No.33/99-CE dated 8.7.1999. It was held that the Commissioner of Central Excise could not exercise his power under Section 11A of the Act to re-open a proceeding that had already terminated and was not earlier challenged by the Revenue. 8. The CESTAT eventually hel....
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....law, arises in this appeal. 12. The material portion of Section 11A of the Act reads as follows: "11-A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.-(1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short-payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with....
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....art, the Assistant Commissioner of Central Excise, Silchar had passed a final order in favour of the assessee on 29.4.2002 and admittedly, this order was revisable under Section 35-E of the Act. For reasons best known to the Commissioner of Central Excise, Shillong no action was taken to have the order of the Assistant Commissioner revised or set aside. Having failed to avail of the statutory remedy available under the Act, the Revenue sought to circumvent the law (as it were) by taking recourse to Section 11A of the Act. In our opinion, this was clearly impermissible inasmuch as what is required to be done in a manner prescribed by law, ought to be done in that manner only or not at all. 14. Insofar as the present case is concerned, the....