Tiny problems show the bigger picture prone to emerge. The condition continues to be liberalizing the economy during the last greater than a decade. Rules happen to be simplified, and much more trust continues to be enforced within the assessee. Such measures have resulted into an explosion from the economy for an extent our country is viewed as emerging superpower. Even on revenue front, unparalleled revenue buyoncy continues to be observed, that could never been accomplished within the so-known as controlled economy. Small conveniences of existence- like sugar, oil, telephone connection etc. can be obtained towards the people with no reference of Very important personel. However, such development has resulted into curtailment of energy from the condition, particularly political figures and bureaucrats. And we’re seeing a reaction from that class. Overtly and discreetly work is being designed to introduce measures to restore that control, which License, Quota, Permit Raj presented to them. Thus you can observe the federal government attempting to control the costs of Cement and Steel, accusations being equalized from the industry in generalized form, stringent measures able to be mistreated being introduced within the taxation laws and regulations, return of FERA by means of anti money washing Act, and also the list isn’t ending. The judiciary is viewed as a bulwark against such misappropriation of energy through the condition. However, when such energy is misappropriated by government as throughout emergency, citizen’s experience is not very heart-warming in connection with this. Indian judiciary couldn’t fulfill the aspirations of those during the time of emergency if this shipped the judgment in -Heabus Corpus- situation . A legal court locked in this situation that To existence does not appear in India beyond Article 21 from the Metabolic rate asia. When the Article is suspended, there’s no To Existence of Liberty in India. Jayaprakash Narayan stated the decision has released the final flickering candle of person freedom. Mrs. Gandhi’s dictatorship in its personalized and institutionalized forms has become complete . After I was reading through the Hon’ble Tribunal’s Judgment just in case of Radhakrishna Synthetics, I felt as should i be reading through exactly the same judgment as shipped in Heabus Corpus situation. This paper may be the author’s personal response to the judgment within the situation, because the author allow us anxiety that if the quasi-judicial body may also be impacted by rise in executive. Privileges will be to guarded against every organ from the condition, such as the Judiciary. In India, there’s just a little scrutiny of choice shipped through the judicial organ from the condition. Such scrutiny is needed to be able to promote transparency and efficiency and behave as an assurance against usurpation of liberty. There’s little if any scrutiny of idol judges in India and individuals are cautious about leaving comments on choice. The social attitudes and orientation of idol judges from the Top Court should be communicated towards the public to produce understanding of what individual idol judges are a symbol of. Idol judges should be aware that the things they write won’t be lost inside a labyrinth of law journals . Details From The Situation: There is a requirement against the organization. The job demand was confirmed by which the assessee filed appeal prior to the Commissioner (Appeal). Meanwhile, the assessee deposited the total amount vide debit entry in RG23A part-II. Once the appeal was made the decision within the favour from the assessee, the assessee informed towards the department and required credit from the amount it deposited earlier. Demand was elevated, and also the tribunal held that such re-credit of amount is recoverable and enforced penalty around the assessee. In our situation the entire duty demand is 91,607/- and penalty enforced is 5000/-. A really small sum in Central Excise parlance. Nevertheless the findings from the Hon’ble Tribunal and it is method of the problem isn’t just erroneous and contradictory- it’s draconian. Further, the tribunal has proven the approach that fault from the revenue could be overlooked and assessee could be punished with no fault. CONTRADICTION IN JUDGMENT: Evidently from it, the judgment is contradictory. The judgment syas in para 6.1, -Once the original authority by his order dated 08.10.1995 confirmed the need for 91,609/- exactly the same become due unless of course otherwise remained through the Commissioner (Appeals). They’ve compensated the total amount on 19.09.1997. This payment was because of any order of pre-deposit produced by the Commissioners (Appeals). Quite simply, what’s been compensated was the job amount duly confirmed through the original authority.- Thus the tribunal arrived at towards the conclusion this would be a payment of duty, and never a pre deposit of duty. However, the tribunal didn’t remember that the department isn’t pleading that it’s a payment of duty- the department is saying that it’s a pre deposit of duty. The tribunal further didn’t remember when duty was compensated in 1997, refund cannot be taken be used in 1999, following the limitation period. The department wasn’t pleading the limitation. As well as the tribunal also didn’t remember variety of its very own choice, which states that quantity compensated after adjudication is pre deposit of duty. Further it states in para 6.2 -The assessee is titled to consider credit within their RG 23A accounts according to specified duty having to pay documents. As the assessee is approved to debit PLA account, RG23A account by themselves for payment of duty, the issue of taking suo motu credit associated with a alleged sum due in the department doesn’t arise. Quite simply self assessment and self payment is envisaged. The machine of taking self refund isn’t approved legally.- The logic, on face from it, looks very convincing but self-contradictory. There’s no provision in Central Excise to pre deposit duty through RG23A part-II. When we pass words from the statute (positivist interpretation of law), the initial act of payment of pre-deposit by debiting RG23A part-II is irregular, and for the reason that situation the assessee has every to erase that irregularity if you take credit. Exactly what the Tribunal says that you could pay duty within an irregular manner, but cannot take refund irregularly. Which means, positive interpretation of law if this favours the department, but otherwise when it’s from the department. Say for instance the assessee was punished to take credit of pre deposit made, nevertheless it hasn’t been described regarding which provision from the Act, the assessee has violated. An assessee can invariably be punished without first explaining which provision of law continues to be violated by him. In para 6.4 the judgment states, -When the refund was due in pursuance from the Commissioner (Appeals) order, the assessee must have searched for the refund to allow the competent authority to think about exactly the same and sanction according to law and when there is any delay within the sanction of refund, what the law states offers payment of great interest according to law. The issue of assessee going for a suo motu refund of duty compensated by them is extremely objectionable and isn’t allowed through the law.- The para is every bit convincing but very harmful. The tribunal easily didn’t remember the assessee did inform towards the department, and also the department hasn’t taken any pursuit (neither recognized nor declined) around the assessee application for roughly 8 years. Could it be legally allowed? And silence of judgment around the problem states a lot more. Further, the assessee isn’t needed to find permission of law for each act, there’s no law which let you breathe. All that’s needed to to avoid anything prohibited legally- and there’s no law which forbids self credit of pre deposit produced by debiting RG23A. The judgment has additionally not tossed any light on any provision, which forbids such act. GAP IN LAW: No law is finished. You will find always situations that there’s no obvious cut provision in law. In individuals situations, government bodies, much more judicial & quasi judicial, are needed to know the problem and complete the gaps in law. There’s a provision of pre-deposit of duty in Central Excise, but there’s no procedure regarding the way the deposit is created. Refund of pre deposit isn’t controlled by Section 11B, and there’s not one other provision of refund in Central Excise, thus no provision of refund of pre deposit. Without explaining things like exactly what the assessee must have done, the tribunal has punished the assessee. Such penalty is cavalier and draconian. See other part from it, the judgment says that credit in RG 23A could be taken only based on certain documents. Order from the department isn’t enumerated among the documents. Thus even when the department orders that such credit could be taken, then also such credit is going to be illegal. And also the department won’t refund the total amount in cash, as duty duty compensated through Cenvat could be returned in cash only in limited situations. Exactly what the assessee did is perfectly legal and and based on numerous choice. Pre deposit can be created by debit in RG 23 register as held by lerger bench of Tribunal in Birla Yamaha Ltd. v. CCE [1996 (83) ELT 396], Shriram Steel v. CCE [1997 (92) ELT 71], Morarjee v. CCE [2003 (157) ELT 657] and Kopran Ltd. v. CCE [2005 (188) ELT 431]. Thus the pre deposit was perfectly legal. The assessee wasn’t needed to file for any refund claim as described in CBEC circular No. 275/37/2k-CX-8A dated 2-1-2002. Further the assessee may take the self credit not just in RG23 register, but even just in PLA if pre deposit is made through PLA. In Ambica Hydraulics v. CCE [2003 (158) ELT 299], the Tribunal held, -I’ve heard each side. It’s well settled that for declaring the refund from the pre-deposited amount, no formal application for that refund of the identical when it comes to Section 11B from the Act is needed to make through the assessee. Within this context reference might be designed to Nestle India Ltd. v. Asstt. Commissioner of C. Ex, Mysore-II, 2003 (154) E.L.T. 567 (Kar.). The Tribunal also in many cases has had this very view. Within the situation of Karam Chand Thapar & Bros. (CS) Ltd. v. CCE, Jamshedpur, 2003 (151) E.L.T. 342 (T), the Tribunal has observed the credit from the pre-deposited amount following the passing from the order towards the assessee through the appellate authority within their PLA could be taken without filing the refund application. Towards the same effect may be the law laid lower within the situation of Vimal Alloys v. CCE, Chandigarh, 2002 (48) RLT 550 (T). In face of the position from the law, the appellants had appropriately taken the loan of the quantity of Rs. 59,000/- within their PLA following the passing from the favourable order within their favour through the Commissioner (Appeals) under whose orders they initially made the deposit once they challenged an order-in-original from the adjudicating authority, before him. The situation was depended upon in JCT electronics v. CCE [2004 (172) ELT 197], in which it had been held that self credit in RG 23A part-II register could be taken. Cellular this, this author is of the perception that judgment is erroneous and must be examined in the earliest. Eternal vigilance may be the cost of liberty, and the like vigilance is needed not just against executive fiats but additionally against erroneous adjudication.