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TMI Blog2002 (9) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner had obtained SSI Registration Certificate from the Industries Commissioner, Bhavnagar on 31-1-1992. The petitioner had also obtained Sales Tax Certificate on 1-4-1992 and thereafter filed its declaration for central excise purposes showing the manufacturing process for the year 1992-93 on 9-4-1992. The petitioner, thereafter, applied for 100% EOU Certificate on 18-4-1992 and the said certificate was obtained by the petitioner on 4-12-1992. The petitioner thereafter filed central excise declaration for the years 1993-94, 1994-95 and 1995-96 on 15-4-1993, 9-4-1994 and 10-4-1995 respectively. 3. The petitioner was directed by the Superintendent of Central Excise, Mahuva, the respondent No. 4 herein to pay Rs. 1,44,910/- for Domestic Tariff Area sales (in short "DTA") made in the year 1992-93 as per the point raised by the audit by letter dated 17-4-1995. In this connection, the petitioner's statements were recorded on 8-8-1995 and 14-8-1995. The petitioner had orally protested against the payment of alleged central excise duty. The petitioner was, thereafter, asked to furnish the details on DTA sales made during the period from 9-12-92 to 27-5-95 and on the basis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and further ordered to appropriate the amount of duty from the amount of Rs. 21,09,863/- paid by the petitioner and refund the balance amount of Rs. 5,40,847/- being excess payment of duty. The respondent No. 2 had also imposed penalty of Rs. 2,00,000/- on the petitioner firm and Rs. 50,000/- each on two partners of the firm. 5. Being aggrieved by the said order of the respondent No. 2, the petitioner filed an appeal before the CEGAT and also moved a stay application which was heard by the CEGAT, Mumbai, and stay was granted against recovery of penalty vide order dated 11-8-2000. 6. Pursuant to the order passed by the respondent No. 2 making an order to refund Rs. 5,40,847/-, the petitioner filed refund claim of the said amount before the respondent No. 3 on 23-5-2000. Instead of granting refund to the petitioner, the respondent No. 3 had issued a show cause notice to the petitioner dated 9-8-2000 directing the petitioner to show cause as to why the refund claim of the petitioner should not be rejected as time-barred under Section 11B of the Act. The petitioner gave its reply to the said show cause notice wherein it was urged that the claim of the petitioner did not fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper and in accordance with the provisions contained in Section 11B of the Act and hence no interference is called for. It was further stated in the affidavit-in-reply that the Commissioner of Central Excise, Rajkot has never passed an order of refunding the balance amount of Rs. 5,40,847/- irrespective of any other provision contrary to Section 11B of the Act. It was further stated in the affidavit-in-reply that the petitioner had not deposited the amount of Rs. 21,09,893/- without any protest under Rule 233(b) of the Rules and had voluntarily paid the said amount. It was further stated that at the time when the payment was made, there was no show cause notice whatsoever and the show cause notice came to be issued for the first time on 5-1-1998 and the petitioner should therefore make an application for refund within a period of six months. The time gap for duty payment and refund claim is limited to one year and since the said period of limitation expired much earlier, the Deputy Commissioner of Central Excise was justified in rejecting the refund claim of Rs. 5,40,847/- as time-barred. 8. The petitioner dealt with the objections raised by the respondent No. 3 in his affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had then been appropriated and disbursed. Our attention is further invited to the decision in the case of Sanita Arora v. Union of India, 2002 (142) E.L.T. 554 (Del.), wherein it was held that the High Court has ample powers to pass appropriate orders to render complete justice where claim for refund by way of consequential relief or where petition is for enforcement of statutory obligation. 10. Coming to the facts of the present case, the petitioner had paid the amount of Rs. 21,09,893/- pursuant to the demand made and threat given by the respondents No. 3 and 4. The petitioner has filed detailed affidavit to that effect and the said fact is not controverted by the respondent No. 3 in his affidavit-in-reply. It cannot, therefore, be said that the payment was voluntarily made by the petitioner. Even otherwise, after adjudication, the Commissioner of Central Excise has passed an order giving clear-cut direction that the balance amount shall be refunded to the petitioner after following the usual procedure under the law. By taking the clue from the words "after following the usual procedure under the law", the respondent No. 3 is not justified either in law or on facts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly and the amount so determined shall be credited to the fund : Provided that the amount duty of excise as determined by the Assistant/Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant if such amount is relatable to - (a) *** (b) *** (c) *** (d) duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person. (f) *** Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, degree, order or direction of the Appellate Tribunal or any Court or in any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 (1), (2) and (3) of the Act. The provisions contemplate the pendency of the application on the date of 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 provisions are held applicable, even to matters concluded by the judgments or final orders of courts, it amounts to stating that the decision of the court shall not be binding and will result in reversing or nullifying the decision made in exercise of the judicial power. The legislature does not possess such power. The court's decision m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the goods and not at any time thereafter. This provision cannot be applied in case where dispute was subsequently raised that the duty paid by the assessee was less than due. The instant case is of enhancing value of the material, for which the show cause notice was issued, on the basis of which the amount was paid. Therefore, this would amount to 'deposit' and not 'duty'. Rule 233B is clearly procedural in nature and in the instant case, the occasion to obtain refund does not arise out of the procedural provisions of the Rules. In the instant case, substantive right to get the refund arose in view of the order passed by the Tribunal. Under these circumstances, it is very clear that there is no question of following the procedure laid down under Section 233B and therefore, that would not disentitle the assessee from recovering the amount paid and recovered by the Department in contravention of law. This is only a deposit which was made with a view to avoid interest if ultimately it is held that the petitioner is liable to pay the amount demanded. It cannot be said that the assessee has recovered from its customers the amount subsequently deposited with the Revenue and thus e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on to any person but it was borne by the petitioner. This would show that the petitioner's refund claim is squarely governed by the provisions contained in Section 11B(1) and (2) of the Act. The said claim is also required to be allowed in view of the law laid down by the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India (supra) and the decision of this Court in the case of Parle International Ltd. v. Union of India (supra).
15. The views of the aforesaid situation, we are of the view that the petitioner is entitled to the refund of Rs. 5,40,847/-. The respondents are, therefore, directed to grant the refund of Rs. 5,40,847/- along with interest at the rate of 12 per cent from the date of the order of the Commissioner of Central Excise till the date of the payment. The respondents are further directed to pay the said amount along with interest on or before 31st October 2002 failing which the respondents will have to pay the interest at the rate of 15 per cent p.a. for the subsequent period.
16. The petition, therefore, stand allowed to the aforesaid extent. Rule is made absolute accordingly with no order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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