9911796707
TMI Blog2012 (11) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... rn of amount deposited under a mistake, per se, should not deter from directing the respondents to return such amount. Admittedly, there is no prohibition under the Act from returning such an amount - directed to the respondents to pay petitioners a sum of ₹ 91,128/- with simple interest at the rate of 9% per annum after a period of three months from the date of the application dated 1-11-2003 till actual payment - in favour of assessee. - SCA No. 4676 of 2004 - - - Dated:- 29-8-2012 - Akil Kureshi And Harsha Devani, JJ. Appellant Rep. by : Mr Paresh M Dave Respondent Rep. by : Mr Kalpesh N Shastri JUDGEMENT Per : Akil Kureshi, J : 1. The petitioners have challenged an order dated 23-3-2004 passed by the respondent No.3 Deputy Commissioner of Central Excise. The petition arises in following factual background. The petitioner No.1 is a company registered under the Companies Act. The petitioner No.2 is the office bearer of the company. The company is engaged in the business of manufacture of sanitary wares which are excisable goods. The petitioner company cleared its final product during the period between June, 2002 and September, 2002 on payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he recorded that the High Court and the Supreme Court only have power to entertain such a claim. He, however, would not have any jurisdiction to ignore the limitation period provided in section 11B of the Act. 5. This order, the petitioners have challenged directly before this court mainly on the ground that there being no disputed questions at all, the petitioners may not be relegated to the alternative remedy of appeals. Such petition was entertained and admitted by this court way back in the year 2004. 6. Learned counsel for the petitioners raised following two contentions:- (1) that the amount paid second time would not take the character of duty. Such amount cannot be retained by the Government. Refund claim, therefore, should have been granted without reference to the period of limitation prescribed under section 11B of the Central Excise Act. 6.1 In support of such contention, counsel referred to the following decisions of the Tribunal opining that when an amount is paid in excess of the customs duty payable, such amount cannot be considered as the customs duty and would not, therefore, fall within the ambit of section 27 of the Customs Act providing for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat since statutory appeals are available, this writ petition should not be entertained. 7.1 In support of his contentions, he relied on the following decisions:- (1) In the case of Commissioner of Customs and Central Excise vs. Hongo India Private Limited and Another reported in (2009) 5 SCC 791 wherein in the context of limitation prescribed under the Act for filing appeal which is extendable only up to a limited period prescribed, the Apex Court held that the time limit prescribed for making a reference to the High Court is absolute and unextendable and the same cannot be extended referring to section 5 of the Limitation Act, 1963. We, however, fail to see any relevance of this judgment since such a controversy is not arising in the present petition at all. (2) In case of Paros Electronics (P) Ltd. vs. Union of India reported in 83 E.L.T. Page 261 wherein the Apex Court held that a duty which was initially paid without protest, cannot be claimed refund of on the basis of decision taken in case of some other assessee particularly when the order refunding duty had become final. 8. The contention of the respondents that due to availability of alternative remedy, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the consumer. 13. When the petitioners paid the duty of Rs.91,128/- at the time of clearance of goods, they discharged their excise duty liability on such clearances. Thereafter, the petitioners had no further excise duty liability on such goods. If by mistake or a pure clerical error or an oversight, the petitioners also thereafter debited the same amount in the Personal Ledger Account and deposited a sum of Rs.91,128/- all over again, such deposit cannot take the character of duty paid. Such deposit was purely an error and the amount deposited cannot be co-related with the petitioners' responsibility to discharge excise liability. Such payment of Rs.91,128/- made second time, therefore, in our opinion, cannot be seen as a duty deposited or paid. Under the circumstances, the claim of the petitioners seeking repayment of such amount cannot be seen as a refund claim made under section 11B of the Act. 14. If, for any reason, the petitioners were seeking refund of a duty paid, such claim had to be examined under section 11B of the Act and in such a case, the period of limitation would apply in all its rigour. Neither the departmental authority nor this court in a writ jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of duty, the provision is contained in section 11B. However, merely because there is no specific statutory provision pertaining to return of amount deposited under a mistake, per se, in our opinion, should not deter us from directing the respondents to return such amount. Admittedly, there is no prohibition under the Act from returning such an amount. Allowing the respondents to retain such amount would be, in our opinion, highly inequitable. We may not be seen to suggest that such a claim can be raised at any point of time without any explanation. In a given case, if the petitioner is found to be sleeping over his right, or raises such a claim after unduly long period of time, it may be open for the Government to refuse to return the same and this court in exercise of discretionary writ jurisdiction, may also not compel the Government to do so. 16. In the present case, however, no such inordinate delay is pointed out. The petitioners have contended that the error was noticed by them some time in October, 2003 whereupon immediately on 1-11-2003, such refund claim was filed. 17. In a recent judgment in case of C.C. Patel Associates Pvt. Ltd. (supra), this court had occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
