2020 (9) TMI 789 - HC - Central Excise

Time limitation - Refund of CVD / Excise duty - case is yet to be decided even after 16 years lapsed - HELD THAT - The impugned show cause notices are very interesting to read as it exhibits complete non-application of mind. The claim of the writ applicant put forward almost 16 years back is yet to be decided by the authority because, according to the respondents, the original record of the claim is not available. We fail to understand that if the claim of the writ applicant could not be looked into and decided by the authority for want of necessary materials, then the authority could have taken an appropriate decision one way or the other for passing an appropriate order. We fail to understand what was the good ground for the department to issue three show cause notices. The respondents are directed to decide the claim of the writ applicant for the refund of the CVD / Excise duty in the Form R in accordance with law within a period of two months from the date of receipt of the writ of this order. If the department wants any documents for the purpose of looking into the claim, then the writ applicant shall furnish all such necessary and relevant documents at the earliest - application disposed off.

Summary

Issues:
1. Delay in deciding the refund claim application filed by the writ applicant.
2. Issuance of three show cause notices by the respondent No. 2.
3. Lack of original record availability leading to non-decision on the claim.
4. Non-application of mind by the authority in issuing show cause notices.
5. Failure to request reconstruction of necessary records by the authority.
6. Directions for the disposal of the writ application.

Analysis:

1. The writ applicant, engaged in manufacturing recycled nylon chips and plastic granules, filed a writ application seeking relief for the delay in deciding their refund claim application, pending for 16 years. The application was based on various legal provisions and orders supporting their claim for refund.

2. Despite the long delay, the respondent No. 2 issued three show cause notices to the writ applicant, questioning the refund claim. The notices raised concerns about the genuineness and authenticity of the claim, highlighting the absence of original claim papers and the claimant's alleged lethargic approach in following up on the claim.

3. The show cause notices indicated a lack of original record availability with the department, leading to uncertainty regarding the status of the claim and previous decisions on it. The authority's failure to decide on the claim due to missing records raised questions about the necessity of issuing show cause notices instead of taking appropriate action based on available information.

4. The court observed that the show cause notices exhibited a lack of application of mind by the authority, considering the significant delay in deciding the claim and the absence of original papers. The authority's decision-making process was criticized for not taking a definitive stance on the claim despite the extended period elapsed since its filing.

5. The court questioned the authority's failure to request the reconstruction of necessary records from the writ applicant to facilitate the decision-making process. The writ applicant confirmed their past cooperation in reconstructing records when requested, indicating a willingness to provide any additional documents required for processing the claim.

6. In the judgment, the court directed the respondents to decide on the writ applicant's refund claim within two months and instructed the writ applicant to furnish any necessary documents promptly. The court emphasized the need for timely resolution of the claim in accordance with the law, indicating a proactive approach to address the long-pending issue and ensure a fair decision-making process.