2020 (9) TMI 789

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....ayed for the following reliefs: "(a) That Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of mandamus or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the petitioners case and after going into the validity and legality thereof to quash and set aside the show cause notices (i) F. No.XII/18-01/Aasu/Refund/2019-20 (ii) F. No.XII/18-02/Aasu/Refund/2019-20 (iii) F. No.XII/18-03/Aasu/ Refund/2019-20 all three dated 26.5.2020 issued by the respondent No.3. (b) That pending the hearing and final disposal of this petition, respondent No.3 must be restrained from adjudicating the three show cause notices as impugned (i) F. No....

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.... Even in the absence of such words in the notification. the duty leviable would be effective rate of duty only. Even in Section 3 of the Customs tariff Act, the words used are leviable for the time being force" (2) Commissioner's O/O No.11/MP/Vapi/2004, dated 24.03.2004, Para 20 to 22 of the said order. (3) Section 3[1) of the Customs Tariff Act, 1975: levy of additional duty equal to excise duty and explanation thereon. (4) Excise Duty/CVD paid under protest from December 2001 under Section 11 B and Section 118 (2) d & e of the Central Excise Act, 1944." 4. It is not in dispute that the application for refund referred to above is yet to be decided though 16 years have elapsed. 5. It appears that the respond....

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.... claim from the department. Such a lethargic view and attitude of the claimant raises a doubt whether the claim is genuine or fake" 7. Whereas. it is to mention that after major restructuring of the Central Excise & Customs Commissionerate across India, Umbergaon Division came into existence in the year 2014. As mentioned above. the original refund claim papers are not traceable/available with the division. Since, the original claim papers are not traceable/ available with the department, it is not sure, whether the claim had been sanctioned or rejected by the department in the past period. Also, no records are available to ensure the status of the Show cause Notice issued vide F. No. V/ 18490/2004-05/R, dated 10.10.2005 issued by ....

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....o prove its correctness, genuineness and authenticity; no records available whether the SCN issued has been decided or otherwise and subsequently, the claim had been sanctioned or otherwise. Therefore, in such an awkward situation, without the original papers, why the refund claim of Rs. 13,84,843/- should not be rejected for the reason and also that, for such a long period of 15 years of not receiving the refund. no inquiry, follow-up or correspondences have been made by the claimant to know the status of the claim. Also, no substantial documentary evidences have been produced by the claimant that the Said refund amount have not been sanctioned by the department and that they have not received any such amount." 7. The impugned show caus....