9911796707
TMI Blog2006 (3) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not extendable by any authority or court. The Apex Court has given this clarification in the light of the earlier judgments rendered in the case of Mafatlal Industries Limited v. UOI [ 1996 (12) TMI 50 - SUPREME COURT] . Thus, the refund application even in respect of illegal levy or amounts collected beyond the recoverable duty is required to be filed within the period of limitation prescribed u/s 11B of CE Act. Respectfully following the ratio of the Apex Court judgment, the order passed by the Commissioner (A) is set aside and the appeal is allowed. - Dr. S.L. Peeran, Shri T.K. Jayaraman, JJ. REPRESENTED BY : Shri K.S. Reddy, JDR, for the Appellant. Shri M.S. Rajappa, Consultant, for the Respondent. [Order per : S.L. Peeran, Membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in the case Gonterman Peipers (India) Limited v. Additional Secretary to the Govt. of India reported in 1986 (26) E.L.T. 471 (Cal.) has also been relied on. 2. The Revenue is aggrieved with this order and contend that in circumstances were amounts have been paid in excess of duty and where claim for refund has been filed, even in such a circumstances the period of limitation as prescribed under Section 11B of CE Act applies. In this regard, strong reliance is placed on the Apex Court judgment rendered in the case of Asst. Commissioner of Customs v. Anam Electrical Manufacturing Co. reported in 1997 (90) E.L.T. 260 (SC), wherein it has been held in clear terms that even in cases where there is a claim for refund of an illegal levy , the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extendable by any authority or court. The Apex Court has given this clarification in the light of the earlier judgments rendered in the case of Mafatlal Industries Limited v. UOI reported in 1997 (89) E.L.T. 247 (SC). The order of court on this point is reproduced hereinbelow : 2. So far as the question of levy of surcharge of ten per cent which is in issue herein is concerned, we affirm the judgment and order of the Madras High Court. So far as the question of refund is concerned, it is obvious that it shall be governed by the law declared in Mafatlal Industries v. Union of India 1997 (89) E.L.T. 247 (S.C.) = 1996 (9) scale 457, read with Clause (6) of the format order, a copy of which is enclosed herewith, which is as follows : Where a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Civil Court/High Court shall be deemed to be unsustainable in law and such direction shall be set aside. The period prescribed by the Central Excise Act/Customs Act for filing a refund application in the case of illegal levy cannot be extended by any Authority or Court. (2) Where, however, a refund application was filed within the period prescribed by the Central Excise Act/Customs Act but has been dismissed wholly or partly on any ground and the said order is questioned by way of a writ petition or a suit or any appeal arising therefrom the manufacturer/purchaser shall be entitled to withdraw the writ petition, suit or an appeal arising therefrom, as the case may be, and file an appeal before the appropriate appellate authority within six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, in which event, the Revenue appeal shall be disposed of permitting the writ petitioner to withdraw the writ petition to pursue the remedy proposed hereby. (4) The above rules, however, do not apply in the case of a claim for refund of duty levied and recovered under an unconstitutional provision. In such a case, the period of limitation shall be prescribed in Mafatlal Industries. The duty to allege and prove that the duty has not been passed on to another person, of course, remains even in such a case. (5) Where a person challenges the constitutionality of a provision in the Central Excise Act/Customs Act in a High Court or the Supreme Court but fails in his challenge to constitutionality, he cannot take advantage of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
