IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION (CENTRAL EXCISE)

ORIGINAL SIDE CEXA/1/2019 IA NO: GA/1/2019 COMMISSIONER OF CENTRAL EXCISE, KOLKATA-III COMMISSIONERATE VS.

M/S. TEXMACO LIMITED BEFORE :

THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAM AND THE HON’BLE JUSTICE CHAITALI CHATTERJEE (DAS)

HEARD ON : 25.04.2025 DELIVERED ON : 25.04.2025 Appearance:

Mr. Bhaskar Prasad Banerjee, Adv.

Mr. Abhradip Maity, Adv.

…for Appellant Mr. Somak Basu, Adv.

Mr. Swagato Kabiraj, Adv.

…for Respondent T.S. SIVAGNANAM, CJ. :

1. This appeal has been preferred by the appellant/revenue under Section 35B of the Central Excise Act, 1944 (the Act), challenging the order passed by the Customs, Central Excise and Service Tax Appellate Tribunal, Kolkata, East Regional Bench in Appeal No. E/176/2009-DB, CO-58/2009 dated 18th May, 2018.

2. This appeal was heard by the Division Bench on 16th January, 2019 and the Hon’ble Division Bench held that no substantial question of law is involved in the appeal. However, the Hon’ble Division Bench set aside the impugned order passed by the Tribunal and directed the Tribunal to re-hear the appeal properly in accordance with law and determine the same with reasons upon hearing the parties within a time frame. The assessee preferred appeal before the Hon’ble Supreme Court in SLP(C) No(s). 1716/2020. The Hon’ble Supreme Court by order dated 14th February, 2024 set aside the order passed by the Hon’ble Division Bench dated 16th January, 2019 with a direction to this Court to dispose of the appeal in accordance with law as expeditiously as possible.

This is how the matter was listed before the Court for consideration.

3. The department upon receiving the order passed by the Hon’ble Supreme Court placed a Lay Note before the Chief Justice dated 4th April, 2024. The Chief Justice by Note dated 4th April, 2024 directed the matter to be placed before the Hon’ble Division Bench as per determination. The department directed the matter to be listed before a particular Hon’ble Division Bench by endorsement dated 5th April, 2024. Subsequently, the matter could not be heard since one of the Hon’ble Judges presiding over the said Division Bench had retired. Therefore the matter was once again placed for appropriate orders before the Chief Justice and the matter was directed to be placed before the Hon’ble regular Bench having determination, that is, this Court. This is how the appeal stands restored and has been taken up by this Court for consideration.

4. We have elaborately heard Mr. Bhaskar Prasad Banerjee, learned Senior Standing Counsel appearing for the appellant/revenue and Mr. Somak Basu, learned Counsel appearing for the respondent/assessee.

5. The Commissioner of Central Excise, Kolkata-III issued show-cause notice to the respondent/assessee dated 16th July, 2008 calling upon the respondent/assessee as to why the amount collected in the name of the central excise duty and the amount collected in the name of education cess from the buyers under separate invoices issued during the period from 14.8.2003 to 4.2.2006 in excess of the duty determined or paid by them to the Central government, shall not be paid/recovered from the assessee under Section 11D of the Act; why interest under Section 11DD should not be paid/recovered from the assessee.

6. The assessee submitted their reply dated 19.8.2008, after which the adjudicating authority took up the show-cause notice for adjudication and by order dated 31.12.2008 accepted the submissions made by the assessee and dropped the proceedings in the show-cause notice dated 16.7.2008. Aggrieved by such order, the revenue preferred appeal before the Tribunal and the learned Tribunal by the impugned order dated 18.5.2018 has dismissed the appeal filed by the revenue and challenging the said order, the present appeal has been filed.

7. The appellant/revenue has raised the following substantial questions of law for consideration:-

“(i) Whether the respondent being the manufacturer of the final produc