9911796707
TMI Blog2013 (2) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,48,612/= to the petitioners. The petition arises in the following factual background : 3. The petitioners held necessary licence for storing alcohol and for manufacturing the products falling under the Medicinal and Toilet Preparations [Excise Duties] Act, 1955 [hereinafter to be referred to as, the Act of 1955 ]. The respondent-authorities visited the premises of the petitioners and on the basis of inquiries made during such visit, issued a show cause notice dated 16th October 1998 demanding the differential duty of ₹ 2,48,612/=. The petitioners replied to the said show cause notice. The Superintendent of Prohibition and Excise, Valsad however, passed an order in August 1999 confirming the duty demand. Against such order, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application. 5. The petitioners have had strong objection to such proposal made under Order dated 26th June 2010. They pointed out inter alia that they had already succeeded on merits before the revisional authorities. They pointed out that the question of under valuation was gone into by the revisional authorities and decided in their favour. It was stated as under:- (g) Once the final appellate authority, namely, Government of India has set aside the orders of Government of Gujarat, the charge of under valuation does not exist. Because the orders regarding under-valuation by you as upheld by Commissioner [P and E] and Deputy Secretary, Government of Gujarat has merged in the final orders of Additional Secretary, Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008, quashed the demand previously raised by the adjudicating authority as confirmed by the appellate authorities. In the meantime, since the petitioners had already under-protest, deposited a sum of ₹ 2,48,612/= with the respondents, the petitioners were entitled to refund thereof. No rule or provision has been pointed out, under which such amount could have been retained by the respondents. Though our attention was drawn to Rule 9 of the Rules of 1956, we are prima facie of the opinion that such rule would apply in cases where refund is sought of the duty which has been paid through inadvertence, error or misconstruction. This may not apply where the duty is paid under the order passed by the adjudicating authority. In any case, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Such decision binds all parties concerned; including the governmental authorities. It was simply not open for the respondent no.3 to either choose or not to choose to withhold the refund order. In our view, he has committed a serious error not only of raising a question in his show cause notice but by way of pressing such an issue in service in passing an order refusing refund to the petitioners. This was despite the petitioners specifically bringing to his notice the reply to the show cause notice issued by the respondent no.3. 10. This order could have been much shorter. We were however much perturbed by the stand of the respondent no.3, due to which, we have given our expression in this order. In the ultimate result, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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