BHARAT COKING COAL LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The instant writ petition is under Article 226 of the Constitution of India, wherein the communication dated 13.03.2015 issued by the Superintendents, Central Excise & Service Tax, Range-I, Dhanbad addressed to the General Manager, M/s Bharat Coking Coal Ltd., the petitioner herein, making request to deposit the Short payment of Excise duty amounting to Rs.33,68,536/- as detected by the auditor and also to pay the interest amount as applicable to this office has been assailed.

(2.) The brief facts of the case as per the pleadings made in the writ petition that the writ petitioner, the company, is engaged in the business of mining and sale of coal for which it has several collieries divided into various areas and one such area is Sijua Area. The Central Excise duty was initially not applicable on coal, however, the same was introduced for the first time on coal with effect from 01.03.2011. The petitioner-Company had been discharging its liability towards Central Excise duty, however, during the period 2011-12 for few months there was certain short payment and for rest of the months some excess payments were made. The respondent authority vide letter dated 01.07.2013 directed the petitioner to pay an amount of Rs.33,68,536/ along with interest of Rs.19,69,276/- on the ground that there is no provision under the Central Excise law to adjust the excess payment amount of duty against short payment. The aforesaid letter is in question in the present writ petition, inter alia, on the ground that the authorities while calculating the aforesaid duty amount held to be short paid, the department has not considered that for the month of September, 2012, an amount of Rs.6,76,97,656.00 was paid against the liability of Rs.1,81,34,370/- which was actually payable resulting into an excess deposit of Rs.4,95,63,286/- and thus, the excess amount since was adjustable against the previous as well as future dues. Similarly for the period 2011-12, a net excess payment of Rs.57,53,234/- was made against short payment of Rs.33,68,536/- as demanded by the department.

(3.) Per Contra, Mr. Ratnesh Kumar, learned counsel appearing for the Central Excise and Service Tax, has contended that however the statute does not provide any opportunity to be given if any demand is being raised under the provision of Section 11A of the Central Excise Act, 1944 but, however, so far as cardinal principle of observance of principle of natural justice is concerned, there is no denial of the fact that if any adverse decision is being taken against any concerned, the aforesaid cardinal principle of providing an opportunity of hearing is required to be provided. According to him, admittedly while issuing the impugned communication, no such opportunity has been provided.