9911796707
TMI Blog2018 (9) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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 thy obtained from time to time? (ii) Whether on the facts and circumstances of the case, the Tribunal is right in law holding a view that claim was not hit by limitation especially when the trader claimed refund in their capacity as buyers of duty paid packed supari received from the two job workers (packers) and not as manufacturers and therefore limitation applicable to them under Section 11B of CEA was six months from the date of purchase of the packed supari by them from their job workers and the claim was filed much beyond the period of limitation? (iii) Whether on the facts and circumstances of the case, the Tribunal is right in law holding a view that claim was not hit by limitation especially when the trader claimed refund in their capacity as buyers of duty paid packed supari and that the buyer was not entitled to the benefit of exclusion of time limit of six monthly applicable for filing refund by a manufacturer paying duty under protest as provided u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd any one of the following, namely lime, katha, cardamom copra & menthol and tobacco, the betel nut powder known as supari, which do not contain tobacco, cannot be treated as Pan Masala, by inference, bringing the same under the category of Others. Therefore, I am of the considered opinion that the petitioners are not liable to pay the excise duty for the betel nut powder known as supari, treating the same as Pan Masala. However, with regard to the consequential remedy, I remit the matter to the authorities to consider whether or not the duty paid by the petitioner had passed on to the consumers. If the petitioners had passed on the duty to the consumers, they are not entitled for any refund. However, it is for the authorities to take appropriate decision in the matter. Writ petitions are partly allowed and remitted to the authorities for the consequential remedy. WMP Nos.6815 to 1817 of 1994 and 23703 of 1995 are dismissed. No costs." 7.Subsequently, the matter was listed under the caption "for being mentioned", as there were some typographical errors. Nevertheless, the subsequent orders substantially remained the same except for certain clerical corrections. After the writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that the respondent cannot extend the scope of remand as directed by the High Court in the batch of writ petitions filed by the assessee and others. However, it is contended that the assessee, being a trader, is entitled to seek for refund, since they have challenged the very levy as being illegal and this was accepted by the Court and relief has been granted. In this regard, the learned counsel has drawn the attention of this Court to paragraph 83 of the decision of the Hon'ble Supreme Court in Mafatlal Industries Ltd. vs. Union of India [1997 (89) E.L.T. 247 (SC)], wherein it has been held as follows:- "83.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 n 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borately hearing the learned counsels for the parties and carefully perusing the materials placed on record, we are of the considered view that the first issue to be considered is whether the Revenue could have denied the claim made by the assessee as being barred by limitation. If the answer to this question is in favour of the Department, then we may be required to go into the aspect as regards the applicability of the decision in the case of Mafatlal Industries Ltd. (supra) and whether the subsequent decision of the Larger Bench in Allied Photographic India Ltd. (supra) should be made applicable to the case on hand. 13.After carefully going through the materials placed on record, we are of the view that such an exercise is uncalled for in view of the consequential direction issued by the Writ Court while partly allowing the Writ Petition Nos.4265 to 4267 of 1994. The respondent/assessee was the petitioner in W.P.No.4265 of 1994. In the previous part of this Judgment, we have extracted the direction issued by the Writ Court as contained in paragraph 12 of the order dated 29.06.1999. 14.On a reading of the said paragraph, it is evidently clear that the Court granted a declarator ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
