2009 (7) TMI 886 - SC - Central Excise

Refund under Section 11B of the Central Excise Act - according to the Tribunal since the levy of duty was, not challenged by the Appellant(s) who claims to have taken over the operations from its predecessor, they were not entitled to claim refund - Assessee paid duty under protest for the period for which their claim is made. According to the appellants since the duty was paid under protest, Section 11B was not applicable - Held that - Matter remanded to Tribunal to decide the correct status of each of the appellants before us vis-a-vis the erstwhile Corporation, appeals are disposed of

Summary

Issues:
Entitlement to refund under Section 11B of the Central Excise Act, 1944 following a judgment on the non-"manufacture" status of asbestos extraction.

Analysis:
The appeals revolve around the issue of whether the appellants, namely M/s. Southern Asbestos Industries, M/s. Sree Balaji Industries, and M/s. Saritha Industries, are eligible for a refund under Section 11B of the Central Excise Act, 1944. This question arises from a previous judgment by the Supreme Court in the case of M/s. Hyderabad Industries Limited v. Union of India, where it was held that asbestos extraction does not constitute "manufacture." The Competent Authority initially dismissed the claim, but the Commissioner (A) allowed it. However, the Tribunal overturned this decision, which was affirmed by the High Court, leading to the filing of the Civil Appeal(s) by the assessees. The Tribunal's rationale for denying the refund was that the appellants did not challenge the duty levy as they claimed to have taken over operations from their predecessor, thereby not being entitled to the refund.

The crux of the matter lies in the argument presented before the Tribunal that the appellants had acquired mining operations from previous entities, allowing them to benefit from the Supreme Court's ruling in the Hyderabad Industries Limited case. However, the Tribunal concluded that since the appellants did not contest the duty levy on the grounds of non-excisability, they could not claim a refund based on the Supreme Court's decision. This finding was upheld by the High Court. Notably, during the Special Leave Petitions filed before the Supreme Court, discrepancies arose regarding the appellants' relationship with Andhra Asbestos Corporation, initially claimed as subsidiaries but later clarified as contractors. The confusion surrounding the appellants' status was attributed to a communication gap, with the MOU indicating their role as contractors who paid duty under protest, rendering Section 11B inapplicable.

In light of the prevailing confusion and miscommunication attributable to the appellants, the Supreme Court set aside the High Court's judgment and remitted the case to the Tribunal. The Tribunal was tasked with determining the true status of each appellant concerning the previous Corporation. The appellants were granted liberty to amend their pleadings and submit relevant documents within six weeks. The Supreme Court refrained from expressing any opinion on the case's merits, leaving all arguments open for consideration. Ultimately, the appeals were disposed of without any order on costs.