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TMI Blog2012 (10) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Tariff Act, 1985, other than goods specified in the Annexure appended to the notification and cleared from a unit located in Kutch district of Gujarat from so much of the duty of excise and the additional duty of excise leviable thereon under the Central Excise Act and other related Acts as is equivalent to the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilization of Cenvat credit under the Cenvat Credit Rules, 2001. Such exemption was, of course, conditional subject to several conditions provided in the notification itself. We are, however, not concerned with all the details of such conditions in the present petition. 3. One of the conditions was that such exemption would be available only to new industrial units, meaning, units which are set up on or after the date of publication of the notification in the Official Gazette but not later than 31st July, 2003. Such outer time limit was subsequently extended from time to time. Finally such extension was granted up to 31st December, 2005. It is not in dispute that all the petitioners are new industrial units and had been set up before finally extended time limit of 31st Decembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashing the notifications should be given. The matter was, thereupon, placed before the third learned Judge (Justice Jayant Patel), who concurred with the view of Justice D.A. Mehta and held that the notifications were invalid. The decision has since been reported in the case of Sal Steel Ltd. v. Union of India, reported in 2010 (260) E.L.T. 185 (Guj.). 9. Such decision has been carried by the Union of India before the Supreme Court. While admitting the appeal and granting leave, the Supreme Court in its order dated 13th January, 2012 provided for following interim formula :- We have heard learned counsel for the parties on the question of stay of the impugned judgment. Having done so, we direct that operation of the impugned judgment shall remain stayed till further orders, subject to the petitioners releasing to the respondents 50% of the amount due to them in terms of the impugned judgment on the respondents furnishing solvent surety to the satisfaction of the jurisdictional Commissioner, within four weeks of their furnishing the said surety. 10. We may notice that the present petitioners had not earlier approached this Court questioning the abovenoted amended notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1217856 5 5-12-2008 2542242 1217573 1324669 6 7-12-2008 920084 513785 406299 7 7-1-2009 2545277 1566711 978566 8 6-2-2009 4025856 968259 3057597 9 6-3-2009 3633278 580625 3052653 10 2-4-2009 976121 479457 496664 11 6-5-2009 2676923 674513 2002410 12 5-6-2009 309565 166417 143148 13 6-7-2009 747255 249633 497622 14 6-8-2009 984588 605369 379219 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 19888466 0 13 17-3-2008 29170300 29113787 56513 14 14-11-2008 43583777 25377574 18206203 15 10-12-2008 16364815 8722194 7642621 16 26-2-2009 16898213 8889054 8009159 17 13-3-2009 5653252 3023060 2630192 18 7-4-2009 2112101 1743151 368950 19 8-5-2009 4727078 2302736 2424342 20 8-6-2009 5644011 3026146 2617865 21 9-7-2009 4973663 2578518 2395145 22 10-8-2009 6159514 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a declaration that the petitioners are entitled for exemption from the payment of duty of excise on the goods cleared by them as provided by Notification No. 39/2001-C.E., dated 31st July, 2001 without applying the amendments made by the impugned notifications. 12. Learned counsel for the petitioners submitted that the Notification Nos. 16/2008-C.E. and 33/2008-C.E. are invalid as held by this Court. The petitioners were entitled to full refund. The authorities had committed serious error in granting only partial refund. Counsel further submitted that merely because the petitioners were not parties before this Court and therefore not shown as respondents in the SLP filed by the Union of India in the the Supreme Court, the authorities are not implementing the judgment of this Court in case of Sal Steel Ltd. (supra), though the petitioners are also willing to give security to cover 50% amount of the refund claims. 13. On the other hand, learned counsel Mr. Y.N. Ravani for the Revenue submitted that the petitioners had never challenged the notifications when other industries had approached this Court. The petitioners refund claims were processed on the basis of Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners should be held entitled to full refund in terms of original Exemption Notification No. 39/2001-C.E., ignoring the subsequent amendments. 16. Insofar as the validity of the amended Notification Nos. 16/2008-C.E. and 33/2008-C.E. is concerned, this Court has already expressed its opinion in the judgment in case of Sal Steel Ltd. (supra). Proceedings before the Supreme Court are pending challenging such judgment. We, therefore, need not dilate any further on the validity of such notifications. However, we are of the opinion that irrespective of the outcome of such proceedings and the ultimate conclusion that the Supreme Court may reach, either agreeing or disapproving the judgment of this Court, the petitioners cannot maintain their consequential reliefs of grant of refund in terms of invalidity of such notifications in these petitions. We say so because the petitioners, having paid the excise duty, their refund claims are governed by the statutory provisions contained in the Central Excise Act, 1944. Section 11B of the Central Excise Act pertains to claim for refund of duty. Sub-section (1) of Section 11B enables a person claim refund of duty to file a claim before expiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 11B of the Central Excises and Salt Act, as amended by the aforesaid Amendment Act, and by virtue of the provisions contained in sub-section (3) of Section 27 of the Customs Act, 1962, as amended by the said Amendment Act, all claims for refund (excepting those which arise as a result of declaration of unconstitutionality of a provision whereunder the levy was created) have to be preferred and adjudicated only under the provisions of the respective enactments. No suit for refund of duty is maintainable in that behalf. So far as the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Article 32 is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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