9911796707
TMI Blog2011 (5) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmity can be found in the impugned order in sanctioning the refund claim of Rs.38,87,472.72 but crediting the same into the Consumer Welfare Fund of India established under section 12C of the Act - petition fails and is accordingly dismissed - Special Civil Application No. 2928 of 2004 - - - Dated:- 9-5-2011 - Harsha Devani, R.M. Chhaya, JJ. Uday Joshi for the Appellant Y.N. Ravani and Purvish J. Malkan for the Respondent JUDGEMENT Harsh Devani: 1. By this petition under Article 226 of the Constitution of India, the petitioners seeks the following substantive reliefs:- "9. In the premise of what is stated hereinabove the petitioners pray that: 1. YOUR LORDSHIPS may be pleased to issue a writ of declaration or a writ in the nature of declaration or any other appropriate writ, order or direction, holding and declaring that the impugned order dated 4.12.2003 passed by the respondent No.3 is illegal, null and void; 2. YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing the impugned order dated 4.12.2003 passed by respondent no.3 and be fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner company is finally approved. 4. The order dated 18th November, 1987 passed by the Assistant Collector was also challenged by the petitioner company before the appellate authority, that is, the Collector of Central Excise (Mumbai), who set aside the said order and remanded the matter to the lower authority for examining the classification list. Pursuant thereto, the Assistant Collector passed Order-in-Original dated 16th March, 1989 ordering classification under S.H. 7308.90 and confirming demand of central excise duty. Being aggrieved, the petitioner company preferred an appeal before the Collector of Central Excise (Appeals), who upheld the said Order-in-Original. Against the said order, the petitioner company went in appeal to the Customs, Excise and Gold (Control) Appellate Tribunal (the Appellate Tribunal), who, by an order dated 24th August, 1993, allowed the appeal by holding that the product in question is classifiable under S.H. 7208.00. The said order of the Appellate Tribunal came to be challenged by the Department before the Supreme Court by way of Civil Appeal No.2658 of 1994, which came to be dismissed by a judgment and order dated 24th October, 2002. 5. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly when duty was paid under protest. By the impugned order dated 4th December, 2003, the respondent No.3 rejected the claim of the petitioner company for refund of duty paid under protest by sanctioning the same and crediting it to the Consumer Welfare Fund of India established under section 12C of the Act. Being aggrieved, the petitioner has filed the present petition seeking the reliefs noted hereinabove. 6. Mr. Uday Joshi, learned advocate appearing on behalf of the petitioners submitted that the impugned order seeks to take away the legal right which has been created in favour of the petitioner company by the order of this Court, which in no uncertain terms, directed the respondent authorities to refund the amount in question in case of the classification being finalized in favour of the petitioner company. It was submitted that in addition thereto, when the Supreme Court dismissed the appeal of the revenue upholding the judgment of the Appellate Tribunal which ordered the classification in favour of the petitioner company, the respondent authorities were bound to refund the amount of duty paid under protest. 6.1 It was further submitted that until the issue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a difference under the Act between payment of duty under protest on one hand and refund consequent upon finalization of provisional assessment on the other hand. It was submitted that in the present case, since the duty has been paid under protest, the provisions of section 11B of the Act would be attracted and as such, the bar of unjust enrichment would operate. Inviting attention to the impugned order dated 4th December, 2003, it was pointed out that the adjudicating authority has recorded a categorical finding of fact to the effect that it was not disputed by the assessee that they had collected the duty paid under protest from the customers. It was submitted that the petitioner having collected the duty from the customers, the principles of unjust enrichment would be clearly attracted and as such, the petitioner is not entitled to the refund of central excise duty and that the impugned order being just, legal and proper, does not warrant any interference by this Court. 8. From the facts and contentions noted hereinabove, the first two issues that arise for consideration are, firstly as to whether in the light of the order dated 31st December, 1987 passed by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act:] Provided further that the limitation of six months shall not apply where any duty has been paid under protest. [* * * *] (2) If, on receipt of any such application, the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty of excise as determined by the Assistant Collector of Central Excise under the foregoing provisions of this sub-section shall, instead of being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to refund except as provided under sub-section (2) of section 11B notwithstanding anything contrary contained in the said decision. 12. Insofar as the claim of the petitioner company that the assessment was provisional till the classification came to be finalized by the decision of the Supreme Court is concerned, it is the case of the respondents that no provisional assessment has been sought for by the petitioners or ordered by the Department and as such, the question of finalization of provisional assessment does not arise. In this regard, it may be relevant to refer to the provisions of rule 9B of the Rules which provides for provisional assessment to duty and reads as under:- RULE 9B. Provisional assessment to duty.- (1) Notwithstanding anything contained in these rules:- 1. where the proper officer is satisfied that an assessee is unable to produce any document or furnish any information necessary for the assessment of duty on any excisable goods; or 2. where the proper officer deems it necessary to subject the excisable goods to any chemical or any other test for the purpose of assessment of duty thereon; or 3. where an assessee has produced all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent more particularly when the duty was paid under protest, there is nothing whatsoever to indicate that the assessment was provisional in terms of rule 9B of the Rules. Under rule 9B of the Rules, the proper officer may, either on a written request made by the assessee or his own accord, direct that the duty leviable on goods, in the eventualities stated in the said rule, be assessed provisionally at such rate or value of such goods as may be indicated by him provided the assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such conditions as the proper officer deems fit, binding himself for the payment of difference between the amount of duty as provisionally assessed and as finally assessed. In the present case, there is nothing on record to show that the petitioner had made any written request to the proper officer or that the proper officer on his own accord directed the provisional assessment of the duty payable on the goods manufactured by the petitioner. It is also not the case of the petitioner that the petitioner has executed a bond in the proper form as contemplated under rule 9B of the Rules. Thus, as to whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otest. In September, 1991, the provisions of section 11B of the Act came to be amended. Thereafter, the assessees were served with notice which asked them to show cause why the amount of excise duty paid by them under protest should not be retained by the revenue having regard to the provisions of section 11B, as amended. The assessees showed cause but to no avail. The matter ultimately reached the Tribunal who upheld the contention of the revenue. The Court thereafter referred to the decision of Mafatlal Industries Ltd. vs. Union of India, (1997) 5 SCC 536 and more particularly to paragraph 104 thereof and observed that it was not disputed by the learned counsel for the revenue that the decision in Mafatlal Industries Ltd. governs the appeal and allowed the appeals. On behalf of the petitioner company, Mr. Joshi submitted that the facts of the said case are similar to the facts of the present case inasmuch as in the present case also, the petitioner had paid the excise duty under protest. 16. The aforesaid contention of the petitioners cannot be accepted in view of the subsequent decision of the Supreme Court in the case of Commissioner of Central Excise, Mumbai-II vs. Allied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chemicals Pvt. Ltd. (supra) is per incuriam. In the circumstances, the decision of the Supreme Court in the case of Sinkhai Synthetics and Chemicals (P) Ltd. (supra) does not carry the case of the petitioners any further. 17. In the light of the principles enunciated by the Supreme Court in the case of Commissioner of Central Excise, Mumbai-II vs. Allied Photographics India Ltd. (supra), it is apparent that the duty paid under protest falls under section 11B of the Act and as such, would attract the principles of unjust enrichment. In the circumstances, the respondent No.3 Adjudicating Officer was justified in invoking the provisions of section 11B of the Act in the facts and circumstances of the present case. Also, in the light of the findings of fact recorded by the adjudicating authority that the assessee had not disputed that they had collected the duty paid under protest from the customers, it is apparent that this is a clear case of unjust enrichment and as such, no infirmity can be found in the impugned order in sanctioning the refund claim of Rs.38,87,472.72 but crediting the same into the Consumer Welfare Fund of India established under section 12C of the Act. The impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
