Madras High Court
D. Suyaraj vs Asstt. Collector Of Customs And Central ... on 4 October, 1991
Equivalent citations: 1992(58)ELT206(MAD)
ORDER
1. This Writ Petition coming on for hearing on this day upon perusing the petition and the affidavit filed in support thereof the order of the High Court, dated 27-3-1991 and made herein and the records relevant to the prayer aforesaid comprised in the return of the respondent to the Writ made by the High Court, and upon hearing the arguments of Mr. R. Venkataraman, Advocate for the petitioner, and of Mr. K. Jayachandran, Addl. Central Govt. Standing Counsel on behalf of the Respondent, the Court made the following Order :-
The petitioner has been carrying on business as manufacturer and seller of detergent soap cakes at Coimbatore. The Central Excise Officers inspected the place of business of the petitioner on 22-2-1990 and seized certain records, accounts and detergent soaps valued at Rs. 24,745/-. It is alleged that the petitioner and his two brothers were taken into custody and coercive statements were recorded from the petitioner and his brothers. It is also alleged that as a result of the respondent insisting upon the petitioner to pay Rs. 75,000/-, the petitioner deposited the sum of Rs. 75,000/- in the Indian Bank, Coimbatore Main Branch, in the account of the Central Government under the head '038 Central Excise'.
2. The petitioner subsequently made a request for refund of the amount for the reason that the collection of advance excise duty is totally without any authority of law and arbitrary on the part of the officials. However, the respondent has not chosen to take any action on the request of the petitioner. In these circumstances, the petitioner has filed the above writ petition for the issue of a Writ of Mandamus directing the respondent herein to refund the sum of Rs. 75,000/- collected from the petitioner on 23-2-1990.
3. The only ground on which Mr. R. Venkataraman, learned Counsel for the petitioner, stresses for refund is that the petitioner is not liable to pay any sum towards excise duty and that the authority has no jurisdiction to collect any advance excise duty and therefore the respondent has no authority to retain the amount collected from the petitioner.
4. Mr. K. Jayachandran, learned Counsel appearing on behalf of the respondent, states that the officials of the Central Excise inspected the business place of the petitioner and found that without obtaining licence the petitioner and his brothers have been carrying on the business of manufacture of detergent soaps and as such, the petitioner is liable to pay excise duty and also contends that the respondent has issued a show cause notice for which the petitioner has chosen to make a representation and that the matter is pending adjudication.
5. However, it is clear that the respondent has not made any assessment on the petitioner and it is only after the assessment is made, the respondent can make any demand on the petitioner for payment of excise duty and without there being any demand, there is no justification for the respondent to retain the money collected from the petitioner and consequently, the writ petition has to be allowed by directing the respondent to refund to the petitioner the sum of Rs. 75,000/- which has been collected from him. Accordingly the writ petition is allowed. The refund shall be made within four weeks from this date. No costs.
6. Mr. Jayachandran, learned Counsel for the respondent, fervently represents that the petitioner is not co-operating in the adjudication proceedings and that there should be a direction to the petitioner to co-operate in the adjudication proceedings.
7. On a consideration of the entire materials on record, Mr. Jayachandran may be right in making such a plea and consequently this Court directs that the petitioner should co-operate in the adjudication enquiry held by the respondent.