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TMI Blog2017 (1) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... ule of caution and prudence. Eventually everything must depend on facts and circumstances in each case. The petitions cannot be entertained on the ground that there are factual issues involved. The mixed questions of fact and law are, therefore, capable of being properly resolved in the appellate remedies available to the petitioners under the scheme of the Central Excise Act - petition dismissed as not maintainable - decided against petitioner. - Writ Petition No. 2733, 2734 of 2016 - - - Dated:- 9-1-2017 - S. C. Dharmadhikari And B. P. Colabawalla, JJ. Mr. S. Ganesh, senior counsel with Mr. V.A.Rana, Ms. Vishakha Vaswani, Mr. Zeeshan Farooqui i/b M/s. Gagrats for the Petitioners in both petitions Mr. Anil C. Singh, Additional Solicitor General with Mr. Swapnil Bangur, Mr. Vipuyl Bajpayee and Ms. Indrayani Deshmukh for the Respondents JUDGMENT [ Per S. C. Dharmadhikari, J. ] 1. These two petitions under Article 226 of the Constitution of India pray for issuance of a writ of certiorari or any other appropriate writ or direction in the nature thereof calling for the records and proceedings in relation to an order-inoriginal dated 16th September, 2016, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order and that is how for correction of the same, this Court's extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India is invoked. 4. Mr. Ganesh would then submit there is another wrong test applied in the impugned order and which is purely legal. The impugned order proceeds on the footing that if the amount paid as duty under protest is reflected in the accounts as receivable then alone a claim for refund can be raised. Else, it would be presumed that the duty which has been so paid has been recovered by passing the burden on the consumers. This cannot be a test in law according to Mr. Ganesh. He would submit that there is no obligation to show the duty on the credit side of the Profit Loss Account. In that regard, he would submit that there is a binding order passed by the CESTAT and which ought to be followed by the Deputy Commissioner in this case. Secondly, where there are seventeen units of the petitioner-ACC Limited and the matter pertains to only two units Gagal-I and Gagal-II, which are affected, then, there is no obligation and in law which can be said to be cast on the petitioners and particularly that they must su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the petitioner- ACC Limited. What we have before us is the claim based on a factory at Gagal (Gagal Cement Works Unit-I) Barmana, Bilaspur, Himachal Pradesh. The said unit has undertaken substantial expansion of installed capacity in the plant and, therefore, became eligible to claim exemption from payment of excise duty. Reliance was placed on certain notifications. Needless to state that the assessee-petitioner is a manufacturer of cement. Further relying upon the Central Excise Registration and the process of manufacture it is claimed that the manufacture of clinker an excised commodity which is used captively for manufacture of cement by using inputs like gypsum and/or fly ash etc., cement is manufactured out of the clinker and cleared for sale from the factory gate or cleared on stock transfer to other depots. The Gagal-I Unit is clearing the cement on payment of excise duty at appropriate rate. Some amount of clinker is also removed from time to time on payment of appropriate duty to the sister unit Gagal Cement Works Unit-II. Some quantity of clinker may also be sold from the factory on payment of appropriate duty. After setting out the details with regard to the substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im for refund of duty and interest , if any, paid on such duty.- (1) (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner 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 Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant s current account maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oices it is not understood as to whether the petitioner has mentioned the duty element in the invoices or not. Further, whether the duty paid has been included / accounted for in arriving at the sale price of the final product, namely, cement cleared from the Gagal-I and Gagal-II unit could not be ascertained as the petitioner has failed to submit the costing duty of the cement and CAS-4 for the relevant period. 12. The petitioner replied to this Deficiency Memo on 18th February, 2016, and submitted that the refund claim has been forwarded with all the information. The central excise invoices and which are referred in the communication are available. About 100 invoices of such periods as representative samples were relied upon and a list of these was then provided. The petitioners purported to reply to each and every query / deficiency and asserted that the refund claim be processed at the earliest. They also then, by a further communication dated 22nd February, 2016, annexed the cost certificates issued by the Cost Auditor for the period April, 2005 to April, 2013 for Gangal-I and April, 2006 to February, 2013, for Gagal-II. They also stated that should the Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners in terms of the third proviso to section 11B and also section 12B. This position was maintained by him and in the further letter dated 18th May, 2016, as well. 13. The petitioner seems to have submitted that though section 11B and the proviso has been invoked, it is apparent that all the documents have been submitted. The amounts were deposited under protest and the cenvat credit was taken on a protective basis for manufacturing clinker which was again captively consumed. The stand that the petitioner took was that conservative principles of accounting which are relied upon need not be applied and universally. The amount was paid under protest as already confirmed by the auditors. It is lying in an asset account which includes amounts paid under protest by the company. Such an accounting entry, keeping the risk factor in mind, is not in line with the conservative accounting policy since the matter was subjudice. This cannot lead to a conclusion that the excise duty element has been or was intended to be recovered from the customers. Besides the above, the fact remains that cement prices are demonstrably and completely market determined and driven and are indepen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o process and grant the claim. 14. In fact, when the petitioners place reliance on a communication, copy of which is annexed to the petition as Annexure-AB, dated 1st August, 2016, in paragraph 5.5.8 they state that the trends on movement of sale price, cost of production and total cost in the two most important markets served by Gagal Plants Himachal and Punjab is the one that is set out in this letter. Thus, the impact on overall profitability due to movements and total cost was an issue clarified. 15. It is on this and the other detailed material that the impugned order has been passed. Upon perusal of the same, it is evident that this is not a matter where the refund claim comprises solely of amounts paid as a condition for stay or a pre deposit order. The total sum of refund and which is claimed is broken up into several aspects, one of which is a amount of duty deposited as a condition to avail of the right of appeal. Thus, not the entire sum could be said to be comprised in a pre deposit order. There are elements of duty paid under protest and which are also included in the refund claim. In relation to such duty payment and under protest, the petitioners maintain and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand for the same. However, the main question on the issue is not about those factors or reasons affecting the sale price or determining the sale price. The main question is whether being a manufacturer, they sold their duty exempted cement at a price lower than the cost price of the cement as mentioned in their cost data sheet / CAS 4 of the cement which includes the duty paid under protest for the clinker captively consumed in the manufacture of the duty exempted cement, during the relevant period. Thereafter the impugned order proceeds on some common understanding of the manufacturers. The finding then is that manufacturing expenses of the duty exempted cement manufactured includes the cost of raw materials, in this case, such as clinker and others and there are other costs included as well. Out of all the raw material used in this regard, clinker is the major one. Hence, whatever be the factors as stated by the claimant which influence the selling price of duty exempted cement, the manufacturer while selling the goods and realising the proceeds would proceed in the manner held by the Deputy Commissioner. It is in these circumstances that the cost duty sheet and the details ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle has application and the one that is applied was not applicable or otherwise. It is not that as a absolute proposition of law that the impugned order holds that assessee like the petitioners can avail of the refund provided a particular treatment is given in the accounts and essentially in the Profit Loss Account. It is not whether the same has to be reflected only as receivable and there is no requirement to show that as a debit or a liability in the columns in that regard that has gone into consideration in the case before us. There are various principles of accounting and which have been invoked and applied, may be, according to the petitioners, erroneously. However, we do not think that such factual matters can be resolved by us in our limited jurisdiction and when it is not disputed that the alternate remedies are equally efficacious. 19. Once we have seen that this is not a case entirely based on refund of amounts deposited as pre deposit but there was a blend or mix of such sums with the amount paid under protest, then, all the more we do not think that the judgments on the point of a writ being maintainable despite availability of alternate efficacious remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of being properly resolved in the appellate remedies available to the petitioners under the scheme of the Central Excise Act. Relegating them to these remedies the writ petition is disposed of. 25. After having heard Mr. Ganesh and Mr. Anil Singh, learned Additional Solicitor General, we are of the opinion that the facts and circumstances in the case of Ambuja Cements Limited's case may not be exactly on par with the case dealt with, namely, ACC Limited, but Mr Ganesh concedes that more or less identical factual controversy and issue is involved. For the reasons that have pursuaded us not to entertain the petition filed by ACC Limited, even writ petition No.2734 of 2016 is disposed of on the ground that the petitioner therein as well has alternate equally efficacious remedy available to obtain the relief of refund. 26. We clarify that in both the matters there is no opinion expressed by us on the factual and legal controversy. Beyond noting the stand of both sides and referring to the rival contentions we have expressed no opinion on the correctness thereof or otherwise on the merits of the refund claim. They are all kept open for being raised in the appellate proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X
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