1993 (7) TMI 88 - HC - Central Excise

Summary

Issues Involved:
1. Classification of phenolic formaldehyde moulding powder, urea formaldehyde moulding powder, and melamine formaldehyde moulding powder under the Central Excises and Salt Act, 1944.
2. Legality of excise duty recovery on these moulding powders.
3. Applicability of Section 11B of the Central Excises and Salt Act, 1944 for refund claims.
4. Jurisdiction of the High Court under Article 226 of the Constitution of India for refund claims.

Detailed Analysis:

1. Classification of Moulding Powders:
The petitioners, a company engaged in manufacturing phenolic resins, urea formaldehyde resins, and melamine formaldehyde resins, argued that the modification of these resins into moulding powders does not amount to manufacture. The Government of India's circulars dated May 5, 1982, and October 6, 1982, supported this view, stating that such modifications do not create a new or distinct product and thus are not subject to excise duty. This position was also upheld by the Division Bench in Industrial Plastic Corporation Pvt. Ltd. v. Union of India.

2. Legality of Excise Duty Recovery:
The company paid excise duty on these moulding powders under protest, believing the duty was wrongly assessed. The petitioners claimed that the recovery of Rs.1,83,28,537.57 was without authority of law as the moulding powders were not excisable. They sought a writ of mandamus for the refund of this amount plus interest. The court acknowledged that the excise duty was paid under a mistaken belief and supported by the circulars and judicial precedents, thus deeming the recovery unconstitutional.

3. Applicability of Section 11B for Refund Claims:
Section 11B of the Act, amended on September 20, 1991, prescribes a six-month limitation for refund claims. The petitioners argued that this limitation should not apply as the excise duty recovery was unconstitutional. The court noted that the limitation under Section 11B binds the Excise authorities but not the High Court under Article 226. The court concluded that the petitioners must seek a refund under Section 11B but directed the authorities to process the claim without applying the limitation period.

4. Jurisdiction of the High Court:
The court debated whether it could grant relief under Article 226, bypassing Section 11B. The court held that the Excise authorities had jurisdiction to initially assess whether the process amounted to manufacture. The erroneous assessment did not equate to a lack of jurisdiction. The court cited several Supreme Court decisions, including M/s. Kamala Mills Ltd. v. State of Bombay and Bata Shoe Co. Ltd. v. City of Jabalpur Corporation, to support this view. The court ultimately decided that the petitioners must follow the statutory refund process under Section 11B but ensured that no part of the claim would be dismissed on the ground of limitation.

Conclusion:
The petition partly succeeded. The court directed the respondents to examine the refund claim on merits within 12 weeks, allowing the petitioners to produce requisite documents and ensuring no part of the claim is barred by limitation. The previously withdrawn amount was not subject to reconsideration. No costs were awarded.