2005 (4) TMI 7 - HC - Central Excise

Demand and collection of central excise duty in the absence of any adjudication order and without issuing a show cause notice coercion - demand and recovery of excise duty under TI-68 in respect of the clearances of Master Batches effected during 1979 to 1986 is totally improper, illegal and contrary to law so there is no unjust enrichment - respondents are liable to refund the illegally collected amount with interest @ 10%

Issues Involved:
1. Legality of demand and collection of central excise duty without adjudication order and show cause notice.
2. Classification of PVC Master Batches under the Central Excise Tariff.
3. Time-barred claims for excise duty.
4. Requirement of issuing a show cause notice for recovery of excise duty.
5. Applicability of Section 11B of the Central Excise Act for refund claims.
6. Unjust enrichment and refund entitlement.

Detailed Analysis:

1. Legality of Demand and Collection without Adjudication Order and Show Cause Notice:

The central issue was whether the demand and collection of central excise duty without an adjudication order and without issuing a show cause notice under the Central Excise Act, 1944, could be sustained. The petitioners argued that under Section 11A of the Central Excise Act, it was obligatory for the department to issue a show cause notice for recovery of excise duty. The court agreed, stating, "It is well settled in law that in the absence of reopening of the completed assessment by a show cause notice within the period of limitation prescribed under the Act, no demand can be raised."

2. Classification of PVC Master Batches:

The petitioners manufactured PVC compounds and PVC Master Batches. Initially, these were classified under TI-15A-1(ii) and cleared at a nil rate of duty. A dispute arose regarding the correct classification, with the department later classifying them under TI-14(1)(ii) with a 5% duty. The Tribunal eventually classified the PVC Master Batches under TI-68. The court noted, "The Tribunal for the first time in its order dated 31st March, 1987 held that the Master Batches are classifiable under TI-68."

3. Time-Barred Claims for Excise Duty:

The Tribunal held that the claim for excise duty for the period November 1978 to April 1979 was time-barred. The court emphasized, "The Tribunal has rejected the claim of the Revenue under the show cause notice dated 29/9/1980 for recovery of excise duty under TI-14(1)(ii) for the period from November, 1978 to April, 1979 on the ground that the same is time barred."

4. Requirement of Issuing a Show Cause Notice for Recovery of Excise Duty:

The petitioners contended that without initiating proceedings by issuing a show cause notice, the demand could not be raised. The court upheld this view, stating, "In the present case, the respondents have not even issued a show cause notice to reopen the concluded assessment by invoking the extended period of limitation."

5. Applicability of Section 11B of the Central Excise Act for Refund Claims:

The respondents argued that the refund of the duty paid could only be granted under Section 11B of the Central Excise Act. The court rejected this argument, stating, "The contention of the respondents that since the amount is paid as duty, the refund of that amount can be granted only under section 11B of the Central Excise Act is also without any merit."

6. Unjust Enrichment and Refund Entitlement:

The court addressed the issue of unjust enrichment, stating, "In the present case, the question of the petitioners passing on the duty element to the customers does not arise because the goods in question were cleared during the period from 1979 to 1986 on payment of duty under TI-14(1)(ii) as claimed by the revenue." Therefore, the court directed the respondents to refund the amount collected illegally with interest.

Conclusion:

The court concluded that the demand and recovery of excise duty under TI-68 for the period from 1979 to 1986 were improper, illegal, and contrary to law. The court ordered the respondents to refund the amount of Rs.10,39,664.98 to the petitioners within 12 weeks, with interest at the rate of 6% per annum from the date of collection until payment. If not complied with, the interest rate would increase to 10% per annum from 1st July 2005 until payment. The petition was disposed of with no order as to costs.

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