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TMI Blog2018 (9) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has granted declaratory relief holding that the assessee is not liable to pay excise duty on betel nut powder. The necessary consequence that has to follow from it is as to what would be the relief that the assessee is entitled to after it has been declared that they are not liable to pay excise duty. There is no need for interpretation or speculation in this regard, since the High Court itself has issued appropriate direction with regard to the consequential relief. The Writ Court, for such purpose, has remanded the matter to the authorities to consider whether or not the duty paid by the assessee had been passed on to the consumers and if the assessee had passed on the duty to the consumers, they are not entitled for the refund. Thus, the scope of remand is the directions as pointed above and what the authority has to look into for the purposes of the consequential relief has also been clearly circumscribed. The authorities of the appellant-Department cannot sit in judgment over the orders passed by the Writ Court. The scope of remand cannot be altered by the Department. There is no requirement for the assessee to file an application for refund on the matter being remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under second Proviso to Section 11B(1) of the Central Excise Act, 1944, as has been held by the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Mumbai II vs. Allied Photographic India Ltd. supra? 3.The above three substantial questions of law, framed for consideration, are overlapping in the sense the question to be decided is whether the claim filed by the assessee claiming refund of the central excise duty paid by them is barred by limitation, as it has been filed beyond the statutory period of six months as provided under Section 11B of the Central Excise Act, 1944 (in short, the Act ). 4.A short preview is required before we venture to answer the substantial questions of law. 5.The respondent herein was one among the writ petitioners in Writ Petition Nos.4265 to 4267 of 1994 wherein they have challenged the levy of central excise duty on the products dealt with by them viz., scented supari . The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 petitions were disposed of, the assessee filed an application for refund on 24.11.1999. This application was held to be time barred, as it has been filed after six months from the relevant date and there is no specific direction in the order passed by the High Court exempting the assessee from the limitation aspect stipulated under Section 11B(3) of the Act and therefore, the claim was held to be hit by limitation under Section 11B(1) of the Act. This order was put to challenge by the assessee before the Commissioner of Customs and Central Excise (Appeals), Trichirapalli. The appeal was allowed and the order passed by the adjudicating authority was set aside. The appellate authority pointed out that the Department having accepted the first part of the High Court order, with regard to the second part of the order, when the matter was remitted back to the lower authority with specific direction, cannot take such a plea that the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 succeeds and asks for refund, his claim will be barred; it will be thrown out on the ground that it has not been filed within six months from the date of payment of duty. We thing that the entire edifice of this argument is erected upon an incomplete reading of Section 11B. The second proviso to Section 11B (as amended in 1991) expressly provides that the limitation of six months shall not apply where any duty has been paid under protest . Now, where a person proposes to contest his liability by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under prote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 declaratory relief in favour of the assessee holding that the assessee is not liable to pay excise duty for the betel nut powder known as supari . The assessee also sought for a consequential relief before the Writ Court to forbear the respondents from demanding any excise duty from them. 15.So far as the consequential relief is concerned, the Court remanded the matter to the authorities to consider whether or not the duty paid by the assessee had been passed on to the consumers. If the assessee had passed on the duty to the consumers, they are not entitled for refund. However, it was left to the authorities to take an appropriate decision in the matter. In our view, the proper manner of interpreting the direction issued by the Court is to give relief to the order and not to render the order passed by the Court unworkable. The attempt of the Revenue in this appeal to do so, cannot be permitted. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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