2009 (12) TMI 550 - HC - Central Excise

Refund - purpose of claiming refund the petitioner cannot rely upon the order passed by the Collector of Central Excise and Customs (Appeals) when the facts are totally different - Held that - petitioner had paid the excise duty voluntarily and cleared the goods at the relevant time - adopting particular classification the petitioner had also passed on burden to the consumers - petitioner is not entitled to any refund - Appeal is dismissed

Summary

Issues Involved:
1. Rejection of refund claims by the Assistant Collector of Central Excise and Customs.
2. Applicability of the order passed by the Collector of Central Excise (Appeals) in the case of M/s. Viral Laminates Pvt. Ltd.
3. Limitation under Section 11B of the Central Excise and Salt Act, 1944.
4. Voluntary payment of duty and passing the burden to consumers.
5. Non-application for revision of classification.
6. Liquidation of the petitioner company.
7. Applicability of the Supreme Court judgment in Collector of Central Excise v. M/s. Wood Polymers Ltd.

Detailed Analysis:

1. Rejection of Refund Claims:
The petitioner company filed Special Civil Application No. 5509 of 1987 and Special Civil Application No. 3804 of 1988 challenging the orders passed by the Assistant Collector of Central Excise and Customs, rejecting their refund claims of Rs. 65,39,719.95 and Rs. 4,58,90,922.47 respectively. The rejection was based on the grounds that the order in the case of M/s. Viral Laminates Pvt. Ltd. was specific to that party and not a final order under Section 35C(4) of the Central Excise and Salt Act, 1944, and that the claims were barred by limitation under Section 11B of the Act.

2. Applicability of the Order in M/s. Viral Laminates Pvt. Ltd.:
The petitioner contended that the Assistant Collector's orders were contrary to the order of the Collector of Central Excise (Appeals) in the case of M/s. Viral Laminates Pvt. Ltd., which classified the product under Tariff Item No. 68 and ordered a refund. The petitioner argued that central excise levy should be uniform across the country and that the Assistant Collector should have followed the higher tribunal's decision.

3. Limitation under Section 11B:
The Assistant Collector rejected the refund claims on the grounds of limitation prescribed under Section 11B of the Central Excise and Salt Act, 1944. The petitioner argued that their claims should not have been rejected on technical grounds of limitation, as the excise duty collected was without authority of law.

4. Voluntary Payment of Duty:
The Excise Department contended that the petitioner had voluntarily paid the duty and had not raised any objection or dispute about the classification or liability of the duty under Tariff Item No. 15A(2). The petitioner had also passed on the burden of duty to customers and had not filed any appeal against the classification of its product.

5. Non-application for Revision of Classification:
The Excise Department further argued that the petitioner had not applied for a revision of the classification of the goods. Without such an application, the refund claims could not be entertained. The petitioner's case was different from M/s. Viral Laminates Pvt. Ltd., which had applied for revised classification.

6. Liquidation of the Petitioner Company:
The petitioner company was ordered to be wound up by the court on 14-10-1998, and the Official Liquidator was appointed. However, no steps were taken by the Official Liquidator to file an appearance on behalf of the company. The court noted that since the company went into liquidation, no one had any interest in the subject matter of these petitions.

7. Applicability of Supreme Court Judgment:
The court referred to the Supreme Court judgment in Collector of Central Excise v. M/s. Wood Polymers Ltd., which settled the issue on merits, indicating that the petitioner was not entitled to any refund.

Conclusion:
The court, after considering the rival submissions, statutory provisions, and decided case law, concluded that the orders impugned did not call for any interference. The petitioner had voluntarily paid the duty and passed on the burden to consumers. The petitioner had not applied for a revision of classification, and the refund claims were barred by limitation. The court dismissed both petitions, discharging the rule without any order as to costs.