TaxTMI 
TaxTMI 
2014 (4) TMI 1093
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....of an investigation and interrogation undertaken, in pursuance of such inspection, the appellant paid a total amount of Rs. 7.53 crores to the respondents on 24-9-2012, 25-9-2012 and 25-10-2012. It appears that after making payments, the appellant sent representations to various authorities claiming that the amounts were paid under threat and duress and that the appellant was not obliged to pay the amount. Eventually, the appellant sought the refund of the amount through a letter dated 16-1-2013. Since the representation for refund did not evoke any response, the appellant came up with a writ petition in W.P. (MD) No. 2026 of 2013. The prayer in the writ petition was for the issue of mandamus, to direct the respondents to refund the amount of Rs. 7.53 crores, allegedly collected, illegally from the appellant. 4. The respondents filed a counter affidavit to the writ petition, contending that the officers of the Anti-Evasion Wing verified the input documents and Cenvat credit Records of the appellant for the period from 2007-2008 to 2012-2013 and found that many of the credit availed input invoices did not pertain to melting scrap classifiable under Chapter Heading No. 7204. ....
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.... show cause notice shall be issued by the Quasi Judicial Authority viz., the first respondent herein, on or before 30-11-2013. (b) The petitioner shall, thereafter, submit objections, if any, along with the documents within five days. (c) It is further directed that after the submission of the objection and the documents, by the petitioner, the Quasi Judicial Authority shall afford sufficient opportunity to the petitioner and pass final adjudication order within a period of one month thereafter. (d) It is further directed that subject to the outcome of the final order, the above said sum of Rs. 7.53 crores paid by the petitioner shall be either refunded or adjusted towards the duty, however, subject to the appeal remedy." 6. Assailing the order of the learned Judge, the appellant came up with the above writ appeal. When the writ appeal came up for admission on 27-2-2014, the learned Standing Counsel for the respondents took notice and after hearing him, a Division Bench of this Court allowed the writ appeal, by an order dated 27-2-2014. 7. However, the respondents, fil....
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.... the claim of the assessee for refund of the amount deposited. Insofar as the first question was concerned, the Division Bench left it undecided in view of the undertaking given by the Department to complete the investigation within one month. But, insofar as the question of refund is concerned, the Division Bench of the Punjab and Haryana High Court held that unless there is an assessment and demand, the department cannot appropriate the amount deposited. Even here, the Punjab and Haryana High Court came to the said conclusion without going into the question of whether the amount was deposited voluntarily or under coercion. 12. In Chitra Builders P. Ltd. v. Addl. Commissioner - 2013 (31) S.T.R. 515 (Mad.), Mr. Jaichandran, J. held that no tax could be collected from an assessee without an appropriate assessment. 13. From the above decisions relied upon by the learned senior counsel for the appellant, it is clear that the respondents cannot collect any duty, either voluntarily or under coercion, except by and under authority of law. As a matter of fact, the learned Standing Counsel for the respondents has no quarrel with this fundamental proposition of law that no t....
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....e the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of one year shall be computed from the date of receipt of information under sub-section (2). ................. (6) Any person chargeable with duty under sub-section (5) may before service of show cause notice on him, pay the duty in full or in part, as may be accepted by him along with the interest payable thereon under Section 11AA and penalty equal to one per cent. of such duty per month to be calculated from the month following the month in which such duty was payable, but not exceeding a maximum of twenty-five per cent. of the duty, and inform the Central Excise Officer of such payment in writing. (7) The Central Excise Officer, on receipt of information under sub-section (6), shall - (i) not serve any notice in respect of the amount so paid and all proceedings in respect of the said duty shall be deemed to be calculated where it is found by the Central Excise Officer that the amount of duty, interest and p....
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....ut, in the case on hand, it is not pleaded either in the counter affidavit filed by the department before the learned Single Judge or in any other document that there was any ascertainment at any point of time, either by the assessee or by the Central Excise Officer. Therefore, the payment of Rs. 7.53 crores made by the appellant, either on their own accord or under threat of coercion, will not quality as a payment made in terms of Section 11A(1)(b). 18. The above conclusion can be arrived at from a different angle also. If we have a look at sub-sections (2) and (3) of Section 11A, it will be clear that once payment is made in terms of Section 11A(1)(b), the Central Excise officer cannot issue any notice thereafter, except in terms of sub-section (3) . The notice issued in terms of sub-section (3) could only be for the amount by which the payment fell short of the amount duly payable. But to invoke the sub-section (3), the Excise officer should for an opinion. The respondents have issued a show cause notice, after the order of the learned Judge. This show cause notice is not in terms of Section 11A(3). Therefore, the payment of Rs. 7.53 crores made by the appellant cannot b....