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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 ..... goods specified in the first schedule to the Central 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uled that the notifications were valid and no declaration of quashing 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 earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und Application Amount of Refund involved Amount Sanctioned Balance Amount 1 14-11-2006 12960628 12959728 900 2 18-12-2006 1813005 1813005 0 3 18-1-2007 2989719 2989719 0 4 15-2-2007 3583152 3583152 0 5 6-3-2007 3364403 3364403 0 6 7-5-2007 6210373 6210373 0 7 9-5-2007 4830858 4830585 0 8 13-6-2007 5084164 5084164 0 9 9-7-2007 8099657 8099657 0 10 27-8-2007 4315119 4315119 0 11 7-9-2007 8321188 8321188 0 12 1-10-2007 19888466 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 2596189 3563325 23 10-9-2009 3221810 1723584 1498226 24 10-10-2009 3982588 1826801 2155787 25 10-11-2009 1936159 1870797 65362 26 9-12-2009 2139806 2005167 134639 27 11-1-2010 2957043 2208516 748527 28 9-2-2010 1022999 986802 36197 29 11-3-2010 2198112 132 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd claims were processed by the Revenue authorities. Refund, as available in terms of original Notification No. 39/2001-C.E. as amended subsequently by the abovenoted two Notification Nos. 16/2008-C.E. and 33/2008-C.E., was granted. Such process took place in the year 2007-08 and thereafter. Barring few, majority claims were made prior to the year 2010. The orders passed by the competent authorities, rejecting remaining amount of the refund claims made by the petitioners, have not been challenged. From the affidavits filed by the petitioners, though an impression is sought to be created that such refund claims were made and partially granted after this Court rendered its judgment in case of Sal Steel Ltd. (supra) and during the pendency of the appeals filed by the Union of India before the Supreme Court wherein the interim relief granting partial refund to the parties before the Supreme Court came to be passed, counsel for the petitioners agreed that the refund claims were processed and sanctioned to the extent noted above by the competent authorities from time to time at the relevant time. He was unable to give any details about any appeals if any of the petitioners had filed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently. They could not have waited for other industries to challenge the notifications and abandoned their claims of refund in the meantime and thereafter revived their prayers for refund on the basis of judgment rendered in case of other industries. 17. In the case of Mafatlal Industries & Ors. v. Union of India & Ors., reported in (1997) 5 SCC 536, the Constitution Bench of the Supreme Court dealt with various aspects pertaining to refund claims arising out of the Customs Act and Central Excise Act. The majority view expressed by Hon'ble Justice B.P. Jeevan Reddy culled out the principles in part-IV of the judgment started with Paragraph-108 of S.C.C. The relevant portion thereof reads as under :- "(iv) It is not open to any person to make a refund claim on the basis of a decision of a court or tribunal rendered in the case of another person. He cannot also claim that the decision of the court/tribunal in another person's case has led him to discover the mistake of law under which he had paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded. It is, of course, obvious that where the refund proceedings have finally terminated in the sense that the appeal period has also expired before the commencement of the 1991 (Amendment) Act (19-9-1991), they cannot be reopened and/or governed by Section 11B(3) [as amended by the 1991 (Amendment) Act]. This, however, does not mean that the powers of the appellate authorities to condone delay in appropriate cases is affected in any manner by this clarification made by us. (xii) Section 11B does provide for the purchaser making the claim for refund provided he is able to establish that he has not passed on the burden to another person. It, therefore, cannot be said that Section 11B is a device to retain the illegally collected taxes by the State. This is equally true of Section 27 of the Customs Act, 1962." 18. It is true that some of the refund claims were made in the year 2010 and 2011. They must therefore have been processed after this Court rendered the judgment in case of Sal Steel Ltd. (supra). However, we have no details provided by the petitioners regarding the rejection of such claims. The dates of the orders passed by the authorities, the reason of rejection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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