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CX - Argument that since Gujarat HC had struck down Rule 8(3A) of CER, 2002 impugned demand had no legs to stand is a fallacious one: HC

By TIOL News Service

BANGALORE, MAR 15, 2018: GARNISHEE proceedings were initiated against the petitioner by seeking to recover the amount in dispute of Rs. 59,95,387/- from the Axis Bank Limited, Mysuru, u/s.11 of the Central Excise Act, 1944 read with Section 79(1) of the CGST Act, 2017.

The petitioner-Company has challenged this order before the Karnataka High Court.

Incidentally, the petitioner had not challenged the order dated 21.11.2014 passed by the Commissioner of Central Excise (Appeals).

The petitioner urged before the Court that since Rule 8(3A) of the CER, 2002 was struck down by the Gujarat High Court in  Indsur Global Ltd. on 26/27.11.2014  =  2014-TIOL-2115-HC-AHM-CX, the petitioner felt that the demand in question raised under the said Rule cannot be enforced against him and, therefore, they did not prefer the regular appeal before the Tribunal.

The counsel for the Revenue submitted since the operation of the Gujarat High Court judgment was stayed by the Supreme Court, where the matter is still pending, the belief of the petitioner-Company that Rule 8(3A) of the Central Excise Rules, 2002 did not become operative is baseless and, therefore, the present writ petition deserves to be dismissed.

The High Court opined that the petitioner-Company ought to have kept the lis alive by filing the regular appeal before the Tribunal u/s.35 B of the Central Excise Act, 1944; that the argument that since the Gujarat High Court had struck down the said Rule 8(3A) of the Central Excise Rules, 2002 the impugned demand had no legs to stand is a fallacious one. Inasmuch as so long as the order passed by the Commissioner of Excise (Appeals), Mysuru held the field, the demand in question was recoverable from the petitioner.

Nonetheless, the High Court viewed that even now belatedly the petitioner company may be relegated back to file the regular appeal before the Tribunal u/s.35 B of the Central Excise Act, 1944.

It is directed that if such an appeal is preferred by the petitioner-company within a period of four weeks, the Tribunal may entertain the said appeal without raising the objection of bar of limitation, subject to the petitioner-company satisfying the other conditions for maintaining such appeal.

The writ petition was disposed of.

Quick reference:

Garnishee Order  is an  order  passed by an executing court directing or  ordering  a garnishee  not to pay money to judgment debtor since the latter is indebted to the garnisher (decree holder). It is an  Order  of the court to attach money or Goods belonging to the judgment debtor in the hands of a third person.

(See 2018-TIOL-440-HC-KAR-CX )


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