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Commissioner Of Central Excise vs Gopi Synthetics Ltd., Alok Synthetics ... on 18 November, 2003
cites
Mafatlal Industries Ltd. And Ors. vs Union Of India (Uoi) And Ors. on 19 December, 1996
He distinguished the decisions of the Supreme Court in Mafatlal Industries Ltd. v. UOI 1997 (89) ELT 247 as well as CCE, Kanpur v. Flock (India) Pvt. Ltd. 2000 (120) ELT 285, stating that in those cases the court was concerned with orders passed in accordance with law. In his case, the order fixing the APC itself is illegal and so it can be challenged in collateral proceedings. He averred that the case be remanded back to the Deputy Commissioner to consider these averments before taking a decision on the refund claims.
Gemini Metal Works vs Union Of India And Ors. on 5 December, 1984
8. The respondents represented by learned advocate, Shri V. Sridharan, strongly pleaded that the order of the Commissioner fixing the APC of the respondents is bad in law, as that order was passed behind the back of the respondents. The Commissioner failed to follow the principles of natural justice while fixing the APC. He took us through the declarations filed by the respondents in terms of Sub-rule (1) of Rule 3 of the Hot Air Stenter Independent Processors Annual Capacity Determination Rules, 1998. The Commissioner while fixing their APC altered the sizes of the chambers without giving any opportunity to the respondents to defend themselves. Such an order is bad in law and therefore can be questioned in any collateral proceedings. He relied upon the decision of the Madras High Court in the case of Gemini Metal Works v. UOI 1985 ECR 2457. His contention is that the refund itself arose out of an order illegally passed by the Commissioner. One can challenge that order in a collateral proceeding such as a claim for refund of duty arising out of that order. The Department cannot argue that the refund claim is not maintainable as the APC fixation order has not been set aside.
M/S. Sangam Processors vs Cce Jaipur- 11 on 11 May, 2001
5. Aggrieved by this order, the Revenue filed the appeals. The grounds of appeal of the Revenue are that the Commissioner (Appeals) is not competent to decide the constitutionality of a levy as such powers are solely within the purview of the High Courts and Supreme Court. In any case, neither the decision of the Tribunal nor of the Apex Court in the cases cited above have held the levy unconstitutional. At best, the Tribunal in Sangam Processors Bhilwara Ltd. case has held that inclusion of galleries and the consequent determination of the APC is erroneous. An erroneous levy does not become an unconstitutional levy by any standards. The Commissioner (Appeals) proceeded on a wrong presumption that an erroneous levy has to be refunded irrespective of the provisions of Section 11B & 12B of the Act.
Collector Of Customs And Central ... vs Citurgia Biochemicals Ltd. on 28 January, 1997
(CCE, Meerut v. Citurgia Biochemicals Ltd. 1998 (101) ELT 568). The respondents have not crossed this bridge as brought out in para 11 of this order.
Central Excise Tariff Act, 1985
Collector Of Central Excise,Kanpur vs Flock (India) Pvt. Ltd. C-7, Panki ... on 4 August, 2000
He distinguished the decisions of the Supreme Court in Mafatlal Industries Ltd. v. UOI 1997 (89) ELT 247 as well as CCE, Kanpur v. Flock (India) Pvt. Ltd. 2000 (120) ELT 285, stating that in those cases the court was concerned with orders passed in accordance with law. In his case, the order fixing the APC itself is illegal and so it can be challenged in collateral proceedings. He averred that the case be remanded back to the Deputy Commissioner to consider these averments before taking a decision on the refund claims.
Cce, Jaipur vs M/S. Bhilwara Processors Ltd. on 14 May, 2001
4. Aggrieved by this order, the assessees approached the Commissioner (Appeals). At that time they contended that duty was paid under protest and so the time limit under Section 11B does not apply and that their invoices show that incidence of duty has not been passed on to their buyers. In support of these claims, they have produced some T.R.6 challans on which a notation is made "duty is paid under protest", filed copies of PLA where a similar notation seems to have been made and invoices raised by them on their buyers to show that the incidence of duty has not been passed on. The Commissioner (Appeals), however, did not examine the veracity of this evidence but proceeded to decide the case in their favour stating that the inclusion of galleries in the dimension of the chamber is unconstitutional and therefore the levy of duties is unconstitutional. He relied on the judgments of the Supreme Court in CCE, Jaipur-II v. Sangam Processors Bhilwara Ltd. 2002 (146) ELT 254 and Mafatlal Industries Ltd. v. UO1 1997 (89) ELT 247 to say that unconstitutional levies are not governed by the provisions of Sections 11B and 12B of the Central Excise Act. He accordingly ruled that the appellants before him are entitled to consequential relief.
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