9911796707
TMI Blog2006 (3) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The reasoning given by the Commissioner is that such amount which has been paid over and above the excise duty is not tax and that amount the department cannot retain it and the period of limitation is not applicable to such payments and deposits. She has relied on number of rulings in support of the contention. On the proposition that the excess amount of duty so paid and collected without authority of law is required to refunded and the state has no right to retain it is gained strength from the ruling of the Apex Court rendered in the case of Commissioner of Sales Tax U.P. v. Auriaya Chamber of Commerce, Allahabad reported in 1986 (25) E.L.T. 867 (SC). On the same proposition that duty paid under mistake of law is without authority of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in the impugned order. In support of this contention that amounts which are not part of the levy or tax which are required to be reimbursed by the Government, the learned Counsel placed reliance on constitutional Bench rendered in the case of Somaiya Organics v. State of Uttar Pradesh reported in 2001 (130) E.L.T. 3 (S.C.). However, the learned Consultant on being queried from the Bench agreed that this judgment did not deal with the aspect of limitation in terms of Section 11B of the CE Act. The learned Consultant also submitted that excess duty paid could be adjusted to other differential duty which would be payable by the assessee. In counter the learned JDR opposed the prayer for adjustment and submitted that the reliance of Bajaj Tem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of refund, to another person. In case the applicant for refund is a company or a society, the affidavit shall be sworn by the Managing Director or the Principal Officer of the Company or the Society, as the case may be. Such an affidavit shall be treated as an averment/assertion which an applicant for refund has to make in terms of the judgment in Mafatlal". 3. The appeals are disposed of in the above terms. No costs. FORMAT ORDER Pursuant to the directions given in Mafatlal Industries v. Union of India - 1997 (89) E.L.T. 247 (S.C.) = 1996 (9) scale 457, the appeals/Special Leave Petitions coming up for disposal shall be disposed of in terms of one or the other of the clauses below : (1) Where a refund application was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be disposed of permitting the writ petitioner to withdraw the writ petition to pursue the remedy proposed hereby. If such an appeal is filed, it shall be entertained without raising an objection on the ground of limitation and shall be dealt with in accordance with law. This direction shall apply even in cases where the High Court or Civil Court is approached after exhausting the remedy of appeal to Collector (Appeals). He can file an Appeal to C.E.G.A.T. within sixty days from today, after withdrawing the writ petition or the suit, as the case may be. (3) Where, however, a writ petition or suit claiming refund was filed directly in the High Court/Civil Court (i.e., without filing a refund application), the petitioner/plaintiff sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or an appeal is preferred under and in accordance with the directions (1), (2), (3) and (4) above, the same shall be entertained only if the applicant for refund/appellant files affidavit stating that he has not passed on the burden of the duty, which is claimed by way of refund, to another person. In case the applicant for refund is a company or a society, the affidavit shall be sworn by the Managing Director of the Principal Officer of the Company or the Society, as the case may be. Such an affidavit shall be treated as an averment/ assertion which an applicant for refund has to make in terms of the judgment in Mafatlal. (7) (a) Where the refund claim is rejected by this Court, the assessee who has already obtained any amount by way ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
