1992 (8) TMI 75 - HC - Central Excise

Summary

Issues Involved:
1. Refund of excise duty.
2. Applicability of amended Section 11B of the Central Excises and Salt Act.
3. Requirement for documentary evidence to establish non-transfer of duty incidence.
4. Jurisdiction of the Court to order refunds post-amendment.

Issue-Wise Detailed Analysis:

1. Refund of Excise Duty:
The respondent, a manufacturer of Service Station equipment, was directed by the first appellant to pay a differential duty of Rs. 1,15,502.57 for the period from 10-1-1979 to 31-3-1980. This order was appealed, and the third appellant remanded the matter, directing the first appellant to approve the price-list based on the sales value at the factory gate under Section 4(1)(a) of the Central Excises and Salt Act. The first appellant approved the price-list, and the respondent filed for a refund of Rs. 19,83,225.64. The refund claim was initially rejected, but subsequent appeals and remands led to the first appellant being directed to reconsider the refund claim. Ultimately, the respondent filed a writ petition (W.P. No. 6260/87) seeking a mandamus for the refund, which was allowed by the learned single Judge, directing the appellants to refund Rs. 16,59,721.30 with interest.

2. Applicability of Amended Section 11B:
During the pendency of the writ appeal against the learned single Judge's order, Section 11B of the Act was amended by the Central Excise Amendment Act, 1991 (Central Act 40 of 1991). The amendment introduced specific conditions for claiming refunds, including the requirement that the incidence of the duty must not have been passed on to any other person. The amendment also stated that no refund shall be made except as provided in the amended sub-section 2, overriding any contrary judgments or orders.

3. Requirement for Documentary Evidence to Establish Non-Transfer of Duty Incidence:
The amended Section 11B required the applicant to furnish documentary evidence to establish that the excise duty incidence had not been passed on to any other person. The Assistant Collector of Central Excise would then determine if the duty was refundable and, if so, credit the amount to the Consumer Welfare Fund unless it fell under specific exceptions.

4. Jurisdiction of the Court to Order Refunds Post-Amendment:
The learned Additional Central Government Standing Counsel argued that post-amendment, the court had no jurisdiction to order refunds except as per the amended provisions of Section 11B. The court acknowledged the merit in this contention, noting that the amendments regulated the manner of refund and prohibited any tribunal or court from ordering refunds contrary to the amended provisions.

Conclusion:
The court concluded that the order of the learned single Judge directing the refund was subject to the amended Section 11B. The respondent must seek the refund from the Assistant Collector in the prescribed form, providing necessary documentary evidence. The court set aside the learned single Judge's order but allowed the respondent to file a new application for a refund within eight weeks. The department was directed to pass orders on the refund application within three months. The court clarified that the limitation period under Section 11B did not apply since the duty was paid under protest.

Judgment:
The writ appeal was allowed, and the order of the learned single Judge was set aside, subject to the respondent's right to file a fresh refund application as per the amended Section 11B. The department was instructed to process the application expeditiously. No costs were awarded.