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TMI Blog2012 (11) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... he sum of Rs.91,129/- was paid twice, the petitioners filed a refund claim before respondent No.3 on 1-11-2003. The respondent No.3, however, prima facie, finding that the refund claim was barred by limitation, issued a show-cause notice dated 9-1-2004 calling upon the petitioners to show cause why the same should not be rejected. It was contended that the refund claim was made beyond a period of one year which was the limitation period prescribed under the law. 3. The petitioners filed a detailed reply to the showcause notice under communication dated 10-2-2004. In the reply to the show-cause notice, they elaborated that the amount was paid second time erroneously, the same was, therefore, not excise duty and the revenue should, therefore, in all fairness, refund the same. It was pointed out that the duty in question relates to five consignments exported by the petitioners to Nepal. The total duty of Rs.91,129/- was paid at the time of export. Second time at the month end of each month of clearance, such duty was paid by making necessary debit entries in the Personal Ledger Account of the petitioner No.1 company. It was contended that in view of the said facts, the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; (i) In case of Star Textile Engg. Works Ltd. vs. Collector of Customs, Bombay reported in 1985 (22) E.L.T. 552 (ii) In case of I.T.C. Ltd. vs. Commissioner of Customs, Calcutta reported in 1999 (113) E.L.T. 213 (iii) In case of Partap Steel Rolling Mills Ltd. vs. Commissioner of Customs, Jamnagar reported in 2006 (200) E.L.T. 255 6.2 Counsel also relied on a recent decision of a Division Bench of this court dated 5-7-2012 in the case of C.C. Patel & Associates Pvt. Ltd. vs. Union of India in Special Civil Application No.1861/2005 wherein in the context of refund of service tax wrongly paid to the petitioner therein, this court made certain observations. (2) Second contention of the petitioners was that the Department cannot withhold such duty which would result into unjust enrichment in favour of the Government. On the principle of restitution and equitable consideration in exercise of writ jurisdiction, this court may also direct refund of such amount by the respondents. 6.3 In this connection, counsel relied on following decisions:- (1) In case of Indo-Nippon Chemicals Co. Ltd. (supra) wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s far back as in 2004 after bipartite hearing. There are no disputed questions of facts. Availability of appeal otherwise also is not a total bar in entertaining a writ petition. Without any further elaboration, such a contention is, therefore, rejected. 9. The facts in the present case are virtually admitted. The petitioners cleared excisable goods on payment of total duty of Rs.91,128/-. Same duty was paid all over again at the month end when such goods were cleared by making debit entries in the Personal Ledger Account of the petitioners. Break-up of such duty payment second time was as under:- PLA Page No. Entry No. & Date Invoice No. Amount debited 3 6 dt. 5.6.02 214 Rs.21,419-00 4 13 dt. 17.7.02 317 Rs. 4,792-00 4 16 dt. 23.7.02 341 Rs.27,209-00 4 17 dt. 24.7.03 343 Rs.17,333-06 6 32 dt. 30.9.02 531 Rs.20,375-00 Total Rs. 91,128-06 10. Thus, the fact that the amount of Rs.91,129/- was paid twice for the same clearance is not in dispute at all. In fact, in the order-in-original, the adjudicating authority accepted the contention of the petitioners that duty was paid twice on the same goods and that therefore, the claim was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 108. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff - whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter - by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can withhold such refund. We say so for several reasons. Firstly, we notice that under sub-section(3) of section 68, the time available to a service provider such as the petitioner for depositing with the Government service tax though not collected from the service recipient was 75 days from the end of the month when such service was provided. This is in contrast to the duty to be deposited by a service provider upon actual collection by the 15th of the month following the end of the month when such duty is collected. Sub-section (3) of section 68 thus provided for an outer limit of 75 days, but never provided that the same cannot be paid by the 15th of the month following the end of the month when such service was provided. Thus, if the petitioner deposited such duty with the Government during a particular quarter on the basis of billing without actual collection, he had discharged his liability under sub-section (3) of section 68. Thereafter, on an artificial basis, the Assessing Officer could not have held that he ought to have deposited same amount once all over again in the following quarter. This is fundamentally flawed logic on the part of the Assessing Officer. &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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