9911796707
TMI Blog1999 (9) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... also does not be entitled to be refunded. The appellant is not entitled to any interest as there was no provision at that time for grant of interest in CESA, 1944 other claims remain mis-substantiated by the appellants. Appeal rejected accordingly. 2. Being aggrieved by this decision, the appellants have filed this appeal. 3. The facts of the case briefly stated are that the appellants manufactured Gummed Paper Tape Slit into required sizes of width and length. A dispute therefore arose whether Gummed Paper Tape is dutiable or not. The Department alleged that gummed paper tape was dutiable. The appellants contested stating that gummed paper tape is not dutiable. When matter came up to this Tribunal. This Tribunal held that gummed paper tape was not covered by the old Central Excise Tariff Item No. 68 and was not liable to duty. This Tribunal passed this order on 12-2-1990. Against this decision of this Tribunal, Revenue filed appeal before the Hon ble Supreme Court in 1992. The Hon ble Supreme Court rejected the said appeal. The appellants submitted refund claim on 21-7-1990 which was received in the office of the Asstt. Commissioner on 23-7-1990. The claim was rejected. Agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that Hon ble Bombay High Court, in the case of Jai Hind Oil Mills Co. v. U.O.I. reported in 1994 (71) E.L.T. 902 (Bom.) = 1994 (53) ECR 324 held that Appellate Order becomes final and binding if not appealed against Show Cause Notice and that initiation of fresh proceedings for unjust enrichment under Section 11B of Central Excises Salt Act, 1944, thereafter is illegal. Ld. Counsel submitted that in their case the Tribunal passed the orders on 12-2-1990 and that the Revenue filed an appeal before the Hon ble Supreme Court only in 1992. He submitted that with the passing of the order by the Tribunal on 12-2-1990, the assessment had become final and the refund should have been given suo moto. He submitted that since three months period was over this decision of the Tribunal had become final and that the appeal filed by the Revenue before Hon ble Supreme Court was only to show that the dispute was still pending. He submitted that no dispute was pending after the decision of the Tribunal on 12-2-1990. Ld. Counsel also referred to the decision of Hon ble Calcutta High Court in the case of Asstt. Collector of Customs v. East Angalia Plastics (India) Ltd. reported in 1994 (74) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily ascertained a proforma in the form prescribed (Annexure XII) will be sent to the party for completion of Part I. On receipt back of the same from the party; the claim will be processed and payment order furnished in Part II and the cheque issued. Ld. Counsel submits that in view of this clear clarification given by the Govt., the amount should have been refunded suo moto by the Govt. which they did not do. Ld. Counsel also referred to the Judgment of the Apex Court in the case of Mafatlal Industries Ltd. reported in 1997 (89) E.L.T. 247. He submits that in para 146, their case was covered under Clause 2 which reads refund order by the statutory authority concerned which have become final. He submits that refund had become final after issue of the order-in-appeal passed by this Tribunal and that when within three months, no appeal was filed by the Revenue before the Supreme Court order passed by the Tribunal had become final and therefore, suo-moto refund should have been given to them. He submitted that this Tribunal in the case of Dalmia Cement (P) Ltd. v. CCE reported in 1998 (101) E.L.T. 669 in para 7 held We have considered the submissions and have perused the case law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (3) as amended in 1991 cannot apply to : 1. Refund made or due as per orders passed by Courts, in a suit or in a petition under Article 226 of the Constitution of India, which have become final. 2. Refunds ordered by the statutory authority concerned which have become final. It is obvious that in such cases no application can or will be deemed to be pending on the date of the commencement of the Amendment Act. No application praying for refund is to be filed in such cases, either. No further probe, regarding the requisites for obtaining refund specified in the Amendment Act, 1991, is called for in such cases. The above aspects are fairly clear. Section 11B(2) and (3) cannot be made applicable to refunds already ordered by the Court or the refund ordered by the statutory authorities, which have become final. It follows from a plain reading of Section 11B, Clauses (l), (2) and (3) of the Act. The provisions contemplate the pendency of the application on the date of the coming into force of the Amendment Act or the filing of an application which is contemplated under law, to obtain a refund, after the Amendment Act comes into force, i am of the opinion, that if the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid the appeal may be a11owed. 6. Shri D.K. Nayyar, ld. DR appearing for the respondent Commissioner submits that in so far as limitation is concerned, duty paid under protest was recorded only in PLA during the period 18-1-1982 to 23-2-1983. He submitted that thus only a small amount is covered by the endorsement of duty paid under protest in the PLA. He submits that in so far as suo moto refund is concerned, para 146 of the Mafatlal Industries case Judgment records: It need hardly be stated that Section 11B(1) the proviso thereto, Section 11B(2) and Section 11B(3) read together will apply only to (1) refund applications made before the Amendment of the Act and is still pending on the date of commencement of the Amendment Act, 1991 and (2) applications contemplated under law to obtain refund and filed after the commencement of the Amendment Act, 1991 . He submits that for claiming a refund an application was essential. He submitted that paras 68, 82, 96 and 99.11 are relevant in so far as an application of claiming refund is concerned. Thus in the instant case since the amount was not determined in the order of the Tribunal holding that gummed paper tapes are not ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is held not to take in refund claims arising as an consequent of Appellate or a Superior Court order. We do not think it is possible to agree such a holding would run against the very grain of the entire philosophy underlying the 1991 Amendment. The idea underlying the said provisions is that no refund shall be ordered unless the claimant establishes that he has not passed on the burden to others. Sub-section (3) of the amended Section 11B is emphatic. It leaves no room for making any exception in the case of refund claim arising as a result of the decision in a appeal/reference/writ petition. There is no reason why an exception should be made in favour of such claims which would nullify the provision to a substantial degree . In para 83, the Apex Court dealt with the limitation aspect and ruled : Now where a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect. If one reads the second proviso to sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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