9911796707
TMI Blog2016 (6) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... e in terms of Section 35G of the Central Excise Act, against the order dated 8-10-2003 of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Bangalore, whereby, an appeal preferred by the assessee, against an order rejecting its refund application as 'time barred', was set aside, and the assessee held entitled to the consequential relief of refund. 2. The brief facts leading to the passing of the aforementioned order of the CESTAT are as follows : The assessee - M/s. Transformers & Electricals Kerala Ltd. (TELK), Angamaly, are manufacturers of power transformers, current transformers, etc. Pursuant to a show cause notice, wherein, a differential duty to the extent of ₹ 73,79,782.67 was demanded from the assessee, adjudication proceedings followed, in which, by Order-in-Original No. 60/88, dated 10-10-1988, a demand of ₹ 8,35,697.20 and a penalty of ₹ 1,00,000/- was confirmed on the assessee. It is relevant to note that, during the pendency of the adjudication proceedings, as against the demand of ₹ 73,79,782.67, the assessee paid an amount of ₹ 7,50,000/- through a debit PLA entry dated 24-3-1987. Thereafter, on receipt of the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up the matter in appeal before the First Appellate Authority, who, by an Order-in-Appeal No. 1/2002, dated 4-1-2002 rejected the appeal. The assessee therefore preferred a further appeal before the CESTAT, which resulted in the order dated 18-9-2003, which is impugned in the present Other Tax Appeal. 3. We have heard the learned Standing counsel for the appellant and also the learned counsel for the respondent-assessee. 4. The learned counsel for the appellant would contend that the impugned order of the Tribunal ignores the decision of the Supreme Court in Mafatlal Industries Limited & Ors. v. Union of India & Ors. [(1997) 5 SCC 536 = 1997 (89) E.L.T. 247 (S.C.)], where, a larger bench of the Supreme Court had found as follows with regard to the requirement of filing applications under Section 11B, as it stood after the amendment in 1991. 91. A good amount of debate took place before us on the question whether sub-section (3) makes Section 11B exhaustive of all kinds of refund claims including those which are refundable as a consequence of appellate/revisional order and/or as a consequence of orders made by the High Court/Supreme Court. Shri Nariman pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r public interest. It is accordingly submitted that it would be just and proper that the amended Section 11B is held not to take in refund claims arising as a consequence of appellate or a superior Court order. We do not think it is possible to agree. Such a holding would run against the very grain of the entire philosophy underlying the 1991 Amendment. The idea underlying the said provisions is that no refund shall be ordered unless the claimant establishes that he has not passed on the burden to others. Sub-section (3) of the amended Section 11B is emphatic. It leaves no room for making any exception in the case of refund claims arising as a result of the decision in appeal/reference/writ petition. There is no reason why an exception should be made in favour of such claims which would nullify the provision to a substantial degree. So far as "lack of incentive" argument is concerned, it has no doubt given us a pause; it is certainly a substantial plea, but there are adequate answers to it. Firstly, the rule means that only the person who has actually suffered loss or prejudice would fight the levy and apply for refund in case of success. Secondly, in a competitive market economy, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions (except where the provision under which the duty is levied is declared as unconstitutional), has necessarily to be filed, considered and disposed of only under and in accordance with the relevant provisions relating to refund, as they obtained from time to time. We see no unreasonableness in saying so. 92. It is then pointed out by the learned counsel for the petitioners - appellants that if the above interpretation is placed upon amended Section 11B, a curious consequence will follow. It is submitted that a claim for refund has to be filed within six months from the relevant date according to Section 11B and the expression "relevant date" has been defined in clause (B) of the Explanation appended to sub-section (1) of Section 11B to mean the date of payment of duty in cases other than those falling under clauses (a), (b), (c), (d) and (e) of the said Explanation. It is submitted that clauses (a) to (e) deal with certain specific situations whereas the one applicable in most cases is the date of payment. It is submitted that the appellate/revision proceedings, or for that matter proceedings in High Court/Supreme Court, take a number of years and by the time the claimant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in favour of the assessee, the payment of ₹ 7,50,000/-, although initially made on 24-3-1987, assumed the nature of a pre-deposit when recognised in the Stay Order dated 23-3-1993 passed by the CESTAT. The learned counsel would therefore contend that, inasmuch as the payment of ₹ 7,50,000/- was in the nature of a pre-deposit, pending disposal of the appeal, the limitation provision under Section 11B of the Central Excise Act would not apply going by the provisions of the Department's own Circular M.F. (D.R.) F. No. 275/37/2K-CX. 8A, dated 2-1-2002. 6. On a consideration of the rival submissions, we find force in the contention of the learned counsel for the assessee, in that, we note that although the assessee had made a payment of ₹ 7,50,000/- towards the duty demand raised on it in 1987, in the adjudication proceedings that ensued, the demand was set aside by the Appellate Tribunal, which remanded the matter for fresh adjudication. In the de novo adjudication proceedings that followed, although there was a demand to an extent of ₹ 7,62,426/- raised on the assessee, the assessee had carried the matter in appeal before the Appellate Tribunal, where, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
