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2019 (9) TMI 529 - HC - Central ExciseRefund of Excise Duty - Time Limitation - relevant date - pre-deposit - Whether payment towards Excise duty can be construed to be payment made towards pre-deposit? - HELD THAT - It is clear that the case of the petitioner that payment towards Excise Duty is in the form of pre-deposit is misconceived. Considering the annexures annexed with the petition i.e. Challans for deposit of Central Excise Duty in Form No.TR-6, that too, without protest is the payment towards the Excise Duty and can never be considered as pre-deposit. If any payment is made as a pre-condition for exercising the statutory right it can be termed as pre-deposit. However,it cannot be equated with voluntary deposit of Excise Duty paid even during the course of investigation and prior to show cause notice or adjudication to assert that it is pre-deposit. The payment of duty was intended to prevent the incidence of interest and liability accruing from the non-payment of duty, and hence, it cannot be termed as deposit. Therefore, the payments made by the petitioner towards Excise Duty in Challans Form No.TR-6, can never partake characteristic of pre-deposit as mentioned in Section 35F of the Act, as argued by learned advocate for the petitioner. The amounts were paid involuntarily and, therefore, are deemed to be under protest and should be considered as deposits deserves to be rejected - Petition dismissed.
Issues Involved:
1. Whether the amount deposited by the petitioner during the investigation was a pre-deposit or Central Excise Duty. 2. Whether the refund claim was filed within the prescribed period of limitation and in the prescribed form under Section 11B of the Central Excise Act. 3. Whether the writ petition under Article 226 of the Constitution of India is maintainable. Issue-wise Detailed Analysis: 1. Nature of the Amount Deposited: The petitioner claimed that the amount deposited during the investigation was a pre-deposit and not Central Excise Duty. The court examined the nature of the deposits made through TR-6 challans, which were intended to prevent the incidence of interest and liability accruing from non-payment of duty. It was determined that these payments were voluntary and not made under protest, hence they could not be considered as pre-deposits under Section 35F of the Act. The court emphasized that only payments made as a pre-condition for exercising a statutory right could be termed as pre-deposits. Therefore, the amounts deposited by the petitioner were categorized as Central Excise Duty. 2. Filing of Refund Claim: The petitioner argued that the refund claim should not be governed by Section 11B of the Act. However, the court referred to Section 11B, which mandates that a refund claim must be filed in the prescribed form within one year from the relevant date. The relevant date, in this case, was the date when the CESTAT allowed the appeal (31.07.2007). The court found that the petitioner did not file the refund claim within the stipulated period and did not use the prescribed form. Furthermore, the court noted that the payments were not made under protest, which would have exempted the petitioner from the one-year limitation. Consequently, the refund claim was deemed time-barred and improperly filed. 3. Maintainability of the Writ Petition: The respondent argued that the writ petition under Article 226 was not maintainable due to the availability of an equally efficacious statutory remedy under Section 35G of the Act. The court referred to the Supreme Court's decision in Mafatlal Industries Ltd. v. Union of India, which held that refund claims must be preferred under the respective enactments within the prescribed period. The court emphasized that the jurisdiction of the High Court under Article 226 should be exercised consistently with the provisions of the Act. Given that the petitioner did not exhaust the statutory remedy and failed to comply with Section 11B, the writ petition was not maintainable. Conclusion: The court concluded that the amounts deposited by the petitioner were Central Excise Duty and not pre-deposits. The refund claim was filed beyond the prescribed period and not in the prescribed form, making it time-barred. Moreover, the writ petition under Article 226 was not maintainable as the petitioner did not exhaust the statutory remedy. The petition was therefore rejected.
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