ORDER
N.K. Bajpai, Member (T)
1. An appeal against the order of the Collector of Central Excise, Bolpur was filed by the applicant-appellant to the Tribunal on 27th December, 1991. Along with it was also filed an Application for stay of recovery of duty of Rs. 7,26,13,596 and penalty of Rs. 50,000 demanded by the Collector in his order. When the stay application came up for hearing on 3rd February, 1992, the learned JCDR’s request for adjournment was allowed and the matter was adjourned to 9th March, 1992. An extract from the order significant is as under :-
“3. At this stage, Shri Sanjay Grover, learned Counsel, submitted that the issue involved in the present appeal is squarely covered in favour of the applicants by a decision rendered by this Tribunal in the case of
Steel Authority of India Limited v. Collector of Central Excise, 1991 (54) E.L.T. 414
, and, therefore, interim stay may be granted. From the record we find that no coercive process has been issued by the Collector. Under these circumstances, we instead of passing any interim order give liberty to the applicants to move an application, if any coercive process is issued by the authorities below. A copy of this Order Sheet be given to both sides DASTI.”
2. It appears from the present application that while the Stay Application was pending and no orders were passed on it by the Tribunal because of the consideration of the larger question of how to deal with appeals and stay applications filed by the Public Sector Undertakings in view of the Supreme Court Order, dated 11th October 1991 to get the clearance of the Committee of Secretaries, the Range Superintendent debited the RG-23A Part II Account of the appellant company and made the following endorsement on it on 31-3-1992 :-
“Rs. 65,30,538 (Basic) and Rs. 6,53,053.80 debited as per Govt’s order CEBEC’s Fax/Tel, dated 10-2-1992 against Govt. dues Rs. 7,26,13,596 (B + S) arising out of order in original No. V(15)50/SH-2505.00/CE/Bol/Collr.2/91, dated 1-10-1991 of Bolpur Collectorate”.
Sd/- 31-3-92
Supdt. C.E. Range II”.
3. Grievance in the present application is that when the RG-23A Part II Register was submitted for scrutiny in the course of finalisation of the monthly RT-12 returns, the Range Superintendent unilaterally made the aforesaid debit and such action on his part is illegal. Reliance for this purpose has been placed on the decision of the Patna High Court in the case of
Rohtas Industries Ltd. v. Superintendent, Central Excise (AIR 1973 Patna 446)
in which it was held that where any amounts were legitimately recoverable from an assessee, the same should be recovered by the Department in terms of the powers vested upon them in the Act, and debit entries cannot be made by any officer in the books of accounts of an assessee himself. Such action has been held to be illegal. The prayer made in the application is to direct the Superintendent to reverse the aforesaid debit entry in the RG-23A Part II Account.
4. When Shri A.N. Haksar, the learned Counsel of the appellant company first mentioned the matter on 7th July before the Bench, we had directed that the matter should be placed along with the file on 10th July. A copy was handed over to the learned SDR Smt. Ananya Ray. But when the matter came up on that day, it was observed that the learned JCDR had not been able to obtain any report from the respondent Collector and requested 4 weeks’ time. Considering the urgency of the matter it was impressed upon him that he should obtain the report by telex or on the telephone. The matter was adjourned to 20th July and a copy of the order was ordered to be given to both sides on that very day.
5. When the matter came up on the 20th July Shri K.K. Bhatia, the learned JCDR submitted that he had not succeeded in contacting the Collector on the telephone that he had first tried to send a letter by speed post but such facility is not available for Bolpur; that he had sent a letter by Registered post on the 13th July (11th and 12th being Saturday and Sunday) and a telex on 14th July. Only his personal Assistant had spoken to someone in Collector’s office. No reply had been received from the Collector so far and, therefore, he was unable to reply to the submissions made in the subject application. Shri Haksar submitted that the matter was serious inasmuch as during the pendency of the stay application in the Tribunal, the Range Superintendent had unilaterally debited the RG-23A Part II Account. He also referred to the decision of the Bombay High Court in the case of
Mahindra & Mahindra v. Union of India [1992 (59) E.L.T. 505]
in which it was held that the action of recovery of the disputed amount during the pendency of the stay application by encashment of Bank guarantee was “highly improper”. He reiterated the prayer for reversal of the debit.
6. We have given our anxious consideration to the matter and feel distressed that not only should the authorities have unilaterally debited the account, even the learned JCDR has not been able to render us the assistance which was sought from him in the form of a report from the Collector. We expected greater attention from him in a matter of such importance. The two cases cited before us leave no doubt in our mind that the raising of the debit in the account in the manner it was done when the stay application was pending before the Tribunal, was totally arbitrary and uncalled for. We also observe that a copy of Order No. 20/92-C, dated 3-2-1992 was given dasti to the learned SDR and another copy was also sent to the respondent-Collector by post on 19-3-92. We think that in these circumstances the Collector as well as the learned Departmental Representative were fully aware of the developments in the matter. In the absence of any response from the authorities we direct that the respondents shall reverse the debit made in the RG-23A Part II Account on 31-3-1992 and credit the same with the amount debited. The respondent is directed to report compliance on or before 5th August 1992. The matter would come up on that day.
7. The operative part of the order was pronounced in the Court after the hearing on 20th July 1992.