Gujarat High Court
M/S. Falah Steel & vs Union Of India & 5 on 26 April, 2016
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/7051/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7051 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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M/S. FALAH STEEL & 1....Petitioner(s)
Versus
UNION OF INDIA & 5....Respondent(s)
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Appearance:
MR PARESH V SHETH, ADVOCATE for the Petitioner(s) No. 1
MR RJ OZA, ADVOCATE for the Respondent(s) No. 2 - 3 , 5
RULE SERVED for the Respondent(s) No. 1 , 6
RULE SERVED BY DS for the Respondent(s) No. 4
SERVED BY RPAD - (R) for the Respondent(s) No. 6
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
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C/SCA/7051/2015 JUDGMENT
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 26/04/2016
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The petitioner has prayed for a direction to quash and set aside a communication dated 23.3.2015 under which the Assistant Commissioner of Central Excise conveyed to the petitioner that the error in payment cannot be rectified as accounts of the years are closed.
2. Brief facts are as under. For the month of March 2014, the petitioner had to pay a sum of Rs.5,04,700/ to the department by way of excise duty. On 31.3.2014, the petitioner made payment of such sum through electronically. However, due to the error of the clerk instead of putting excise code of 0038 of such payment, service code of 0044 was inserted. As a result, the payment of said sum of Rs.5,04,700/ got deposited not in the excise head, but under the service tax liability which admittedly the petitioner did not have at that moment. The department also agrees that insertion of service tax code was purely an error. Immediately on 1.4.2014, the petitioner wrote to the Commissioner, Central Excise Bhavnagar, brought this mistake to his notice and requested for correction in terms of 27.5.2009. The petitioner received no reply from the Commissioner. Instead on 24.2.2015, the Superintendent of Central Excise wrote to the petitioner and sought recovery of what he termed was outstanding dues of Rs.5,04,700/. The Page 2 of 4 HC-NIC Page 2 of 4 Created On Fri Apr 29 01:33:31 IST 2016 C/SCA/7051/2015 JUDGMENT petitioner thereupon once again wrote to the Commissioner on 9.3.2015 and repeated his request for adjustment of the payment already made. On 23.3.2015, the Assistant Commissioner conveyed to the petitioner by impugned communication that the error as per the OM dated 27.5.2009 can be corrected only before closing of the accounts of the year.
3. As noted, facts are not in dispute at all. The petitioner had excise duty liability of Rs.5,04,700/ for the month of March 2014. The petitioner paid such sum electronically on 31.3.2014. Instead of central excise code, the petitioner's clerk put the code of service tax. Whatever be the internal instructions of the department, the amount not due under a head cannot be appropriated leaving the actual dues unpaid. The department cannot appropriate sum towards the head where there was no liability for the petitioner to pay the tax. If the petitioner is now made to pay said sum of Rs.5,04,700/, that would be double recovery by the Government, which would be wholly unauthorised.
4. Under the circumstances, the respondents are directed to adjust the petitioner's payment of Rs.5,04,700/ for its excise liability for the month of March 2014. Petition is disposed of accordingly.
(AKIL KURESHI, J.)
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C/SCA/7051/2015 JUDGMENT
(A.Y. KOGJE, J.)
raghu
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