9911796707
TMI Blog2013 (4) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... of medicine as well as Indian System of Medicine. ii) The petitioner was manufacturing Hadensa Ointment and Lichensa Ointment, which was a patent and proprietary medicine under Item 14E of the Central Excise Tariff and the retail prices were fixed under the Drug Control Order during the year 1956 to 1974. The prices were inclusive of Central Excise Duty. iii) It was in the year 1961, that for the first time central excise duty was levied on patent and proprietary medicines, but the excise duty was not added to the prices by petitioner and it was absorbed in the price as the Drug Control Order was in force. iv) The petitioner opted for notification 161/66 dated 18.10.1966, whereby the Central Government exempted patent proprietary medicines under item 14E so much of the excise duty leviable thereon as in excess of the duty calculated on the basis of value arrived at after allowing a discount of 25% on the prices specified in the price list showing the retail price as ordinarily sold to retailer. v) An explanation to the notification provided element of excise duty, if any added to the price on any of the medicine to be deducted before allowing the discount. The petitioner claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the order passed by this Court was not complied with, the petitioner filed Contempt Petition No.160 of 1999, which was disposed of by this Court on 11.02.2000, granting liberty to the petitioner to pursue it after the decision in writ appeal filed by the department. xiii) The Writ Appeal was however dismissed by holding that the first adhoc discount of 25% was to be deducted and thereafter the element of central excise duty was to be deducted in order to calculate assessable value. xiv) After dismissal of the Writ Appeal, the petitioner made representation to the respondents for refund of the claim filed in 1986. The respondents did not accept the request by taking a stand, that the petitioner was not entitled to the refund of excise duty, on the ground of unjust enrichment. This was not done inspite of the fact, that the Honble Division Bench of this Court had clearly held, that the excise duty element was absorbed by petitioner and not passed on to the customers, as there was no change in the MRP prior to the introduction of Central Excise Act. xv) It was held also by this Court that the prices continued to be the same and no element of excise duty was added to the medicina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder herein. The Appellate Tribunal by its Final Order No.105/08 dated 13.2.2008 disposed of the Petitioners appeal as follows: 3. thus the claim of refund of Rs.734.48, being the duty paid for the period prior to 08.10.1996, is not admissible to the assessee on merits. The claim for the remaining amount of duty (Rs.12,318) is not time barred and the same is liable to be refunded in cash to the assessee in as much as the Revenue has no case that this claim is hit by the bar of unjust enrichment. 4. In so far as the claim of refund of duty of Rs.47,056/- is concerned, ---------, I find that the Assistant Collector of Central Excise was directed to calculate the correct amount payable to the writ petitioner and refund the same within 12 weeks. In the result, the appeal is allowed except in respect of refund claim of duty of Rs.734/= paid for the period 01-4-1966 to 08-10-1966. 6. In the above circumstances the writ petition becomes infructuous and liable to be dismissed. 7. I further submit that the prayer of the Petitioner relating to Order-in-Appeal No.15/2007 (M-1) dated 23.1.2007 against the order of rejection of refund claim in order in original no.16/2006 RF dated 28-03-06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 11 B can be only by the Honble High Court, therefore, the writ petition as framed is maintainable. 10. That the order 125 of 2008 dated 08.02.2008 referred to by the respondent nos.1 & 2 was also enclosed in the typeset of papers, for which refund of Rs.29,860/- (Rupees Twenty Nine Thousand Eight Hundred and Sixty only) was awarded. The issue raised in the present writ petition pertains to the period between April 1966 and September 30, 1982, therefore, the stay order referred to by the respondent, deals with staying of transfer of refund amount to consumer welfare fund, but does not deal with the issue raised in the present writ petition. Reference was also made to the previous writ petitions and the writ appeal. 11. Learned counsel for the petitioner vehemently contended, that the petitioner is entitled to interest on the amount of refund for the period prior to coming into force of Section 11 B, as admittedly this was used by the respondents. The interest therefore was payable under the Interest Act. Therefore, petitioner is entitled to interest even prior to enforcement of Section 11BB of the Act. 12. In support of this contention, learned counsel for the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to above. 15. Learned counsel for the respondents opposed the writ by contending, that the writ petition is not maintainable, as the order impugned in this writ petition stands set aside, and for the reasons best known to the petitioner, the petitioner did not challenge the order passed by CESTAT in setting aside the impugned order and not granting interest. In absence of challenge to the order of CESTAT, the writ petition, as framed is not competent. 16. That the claim of interest by petitioner in this writ petition is not maintainable, as admittedly, the refund was denied to the petitioner, on the ground of unjust enrichment, meaning thereby that the refund was lying with the Consumer Welfare Fund and was not with the department. Therefore, no interest is payable to the petitioner. 17. In support of this contention, learned counsel for the respondents placed reliance on the judgment of the Honble Gujarat High Court in Manisha Pharmo Plast Pvt. Ltd. vs. Union of India, 2010 (262) ELT 165 (Guj.). The learned counsel for the respondents also placed reliance on this judgment to challenge the maintainability of writ petition in view of the availability of alternative statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of passing any order of payment of interest to the petitioners. Otherwise also, for a substantial period, the amount was lying with the Customer Welfare Fund and not with the department." 18. Learned counsel for the respondents further contended, that the relief claimed by petitioner for interest is not competent, as in order to claim interest on equitable ground under the Interest Act, written demand was must, but in this case, neither any written demand has been made for grant of interest on equitable ground, nor relief of interest is claimed in this writ petition. The order impugned in this writ petition is that of the Commissioner of Central Excise (Appeals), which already stood set aside. 19. In support of this contention, reliance was placed on the judgment of the Honble Supreme Court in the case of Union of India vs. Shreeji Colour Chem Industries, 2008 (230) ELT 199 (SC), wherein the Honble Supreme Court was pleased to lay down as under: 7. A three-Judge Bench of this Court in Modi Industries Ltd, Modinagar & Ors. v. Commissioner of Income Tax, Delhi & Ors. [1995(6) SCC 396] dealt with the position relating to grant of statutory interest. In paras 58 &and 59 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to above, if the claim of interest is on equitable ground, a written demand therefor is imperative. 10. In the instant case admittedly no such written demand has been made. In terms of Section 11BB (1), the respondent- assessee is entitled to interest from 12th April, 2004 to 26th August, 2004. The quantum shall be worked out and the amount shall be paid within a period of four weeks. The order of the High Court is accordingly modified and the appeal is allowed to the aforesaid extend. No costs." 20. Finally reliance was placed on the judgment of the Honble Supreme Court in the case of Union of India vs. E.Merck (India), 1998 (97) ELT 219 (SC), holding that no writ in the nature of Mandamus is competent for payment of interest, in absence of any statutory provisions of law. That learned counsel for the petitioner however contended, that this judgment does not take note of the Interest Act, therefore, cannot be taken to be a binding precedent. 21. On consideration, I find that this writ petition is totally misconceived, and is nothing but misuse of the process of the Court. The petitioner in this writ petition challenged the order of Commissioner of Central Excise (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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