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TMI Blog2019 (9) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... never partake characteristic of pre-deposit as mentioned in Section 35F of the Act, as argued by learned advocate for the petitioner. The amounts were paid involuntarily and, therefore, are deemed to be under protest and should be considered as deposits deserves to be rejected - Petition dismissed. - R/SPECIAL CIVIL APPLICATION NO. 10435 of 2018 - - - Dated:- 4-9-2019 - MR S. R. BRAHMBHATT AND MR UMESH A. TRIVEDI, JJ. For The Petitioner (s) : MR HASIT DAVE (1321) For The Respondent (s) : MR NIRZAR S DESAI (2117) CAV ORDER ( PER : HONOURABLE MR.JUSTICE UMESH A. TRIVEDI) 1. This petition under Article 226 of the Constitution of India is filed with following main prayer: 10(A) That Your Lordships be pleased to issue a writ of Certiorari or a writ in nature of Certiorari or any other appropriate writ order or direction quashing and setting aside the order dated 08.09.2017 passed by learned CESTAT at Ahmedabad, and further be pleased to by a writ of Mandamus direct the Respondent no.2 office to forthwith now grant the Refund of Pre-deposits of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2007. 2.6 It is further the case of the petitioner that the Department had challenged the order passed by the CESTAT dated 31.07.2007 before the Hon ble Apex Court and that challenge failed. Not only that review application filed by the department also came to be dismissed. 2.7 Therefore, the petitioner, after receipt of the order of the Hon ble Supreme Court, addressed a letter dated 21.8.2010 to the Divisional Central Excise Authority for claiming refund of ₹ 18,32,076/- on the ground that, it being pre-deposit / deposit made by the petitioner, during investigation. Pursuant to the said letter dated 21.8.2010, claiming refund, a notice dated 10.11.2010 was issued calling upon petitioner to show cause as to why the said application for refund should not be rejected as claim is made beyond the period of limitation as also it has not been made in prescribed form. 2.8 The petitioner, pursuant to the said show cause notice, submitted a detailed reply on 24.5.2011, claiming that, this is a case of return of pre-deposit and not any Central Excise Duty paid by the petitioner on any excisable goods and for such return of pre-deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited it on 20.9.2005, and thereafter also, is always involuntary in nature and thus, under deemed protest also. It is further submitted that despite the petitioner having pointed out to the Authority that their activities are not manufacturing activities, liable to any excise duty, as per the definition of the Excise Duty contained in Central Excise Rules, 2000 and Section 3 of the Central Excise Act, the petitioner was forced to pay the said amount under TR-6 challans. Therefore, deposits made by the petitioner cannot be considered as voluntary in nature. He has further argued that, as held by almost all High Courts in country and as also, Tribunal, as also Apex Court in a few decisions that any amount deposited during investigation, whether with or without protest are always to be deemed under protest and accordingly, considered as deposits only and not as any duty. He has further submitted that law of the land as culled out in the judgments of the different High Courts, as also the Supreme Court that any amounts deposited during the course of investigation or prior to adjudication are always to be termed as deposit and not as any central excise duty. Therefore, he has submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V/s. Transformers Electricals Kerala in 2017 (346) ELT 59 (Ker) ( 12) Shreewood Products Pvt. Ltd. V/s. CCE in 2016 (340) ELT 79 (P H) Technical Decisions on the above point ( 1) Gujarat Engg Works V/s. CCE Ahmd II in 2013 (292) ELT 547 (Tri Ahmd) following above few High Court decisions. ( 2) Metro Motors V/s. CCE Daman in 2015 (39) STR 77 (Tri. Ahmd) ( 3) Metal Plast Exim India Ltd. V/s. CC Kandla in 2012 (280) ELT 120 (Tri Ahmd) On Grant of interest of such deposit. ( 1) CCE Hyderabad V/s. ITC Ltd. (And many others) in 2005 (179) ELT 15 (SC) for mandatory interest on delay in return of deposits or pre-deposits. CBECC circular on deposits during investigation not to follow S.11B ( 1) 984/08/2014-CX dated 16.9.2014. 6. As against that, Mr.Nirzar Desai, learned advocate for the respondents submitted that writ petition filed before this Court under Article 226 is not maintainable as equally efficacious statutory remedy available under Section 35G of the Act is not exhausted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Vs Anam Electrical Manufacturing Co. reported in 1997 (90) ELT 260 (SC) and contended that refund application filed by the manufacturer beyond the statutory time limit under Section 11B, it must be held to be untenable in law, regardless any direction to the contrary contained in an order in appeal, suit or writ petition. In short, the submission is that the statutory time limit cannot be extended by any authority or Court in case of illegal levy. 9. Mr.Desai, learned advocate has further contended that the amount deposited by the petitioner through challans are paid towards the Central Excise duty liability. Therefore, it has to be refunded, as provided under the Act. In short, the submission on behalf of the Department is that for claiming refund of Excise Duty paid, one has to follow the procedure, as prescribed under Section 11B of the Act, that too, of the duty paid under the protest within the time prescribed therein from the relevant date. According to the Department, the relevant date would be the date 7.8.2007 when the CESTAT (Appellate Tribunal) allowed the appeals filed by the petitioner. Therefore, the refund claim should have been filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h duty] has been paid under protest. [ x x x x] ( 2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- ( a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; ( b) unspent advance deposits lying in balance in the applicant's current account maintained with the Principal Commissioner of Central Excise or Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette. Explanation . - For the purposes of this section,- ( A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; ( B) relevant date means,- ( a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods,- ( i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or ( ii) if the goods are exported by land, the date on which such goods pass the frontier, or ( iii) if the goods are exported by post, the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Explanation (B) (ec) considering the explanation with regard to relevant date, it is the date on which the Tribunal allowed the appeal preferred by the petitioner i.e. 7.8.2007. Thus, within one year from that date, the petitioner had to prefer claim for refund of Excise Duty in a prescribed form. 14. Considering the arguments advanced by learned advocates of the parties and scanning the material on record, it is clear that the case of the petitioner that payment towards Excise Duty is in the form of pre-deposit is misconceived. Considering the annexures annexed with the petition i.e. Challans for deposit of Central Excise Duty in Form No.TR-6, that too, without protest is the payment towards the Excise Duty and can never be considered as pre-deposit. If any payment is made as a pre-condition for exercising the statutory right it can be termed as pre-deposit. However,it cannot be equated with voluntary deposit of Excise Duty paid even during the course of investigation and prior to show cause notice or adjudication to assert that it is pre-deposit. The payment of duty was intended to prevent the incidence of interest and liability accruing fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15.11.2011 rejecting the entire refund claim as it being time barred under Section 11B of the Act. It would be profitable to refer a communication dated 21.08.2010 by which, apart from it being not in the prescribed form, nowhere it is stated that ₹ 15 Lacs were deposited through Challan Form No.TR-6 under the threat or coercion from any of the Authority. Not only that, it has never been deposited under protest. Not only in the refund claim application it is not so stated, even in defence reply filed before the Assistant Commissioner pursuant to the show cause notice, no such plea is raised. On the contrary, it is stated that it was a pre-deposit made by the assessee. At the same time, it is claimed in the defence reply that though the said amount is not paid under protest, it is required to be returned back by the Department. 16. The said order passed by the Assistant Commissioner refusing the refund was carried in appeal and Appellate Authority has also vide order dated 13.3.2013 passed Order- in-Appeal No.SRP/542/VDR-II/2013, rejected the appeal preferred by the petitioner and upheld the impugned Order in-Original passed by the Assistant Commissioner on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority of law. Both the enactments are self contained enactments providing for levy, assessment, recovery and refund of duties imposed thereunder. Section 11-B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasize in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal- which is not a department organ but to this Court which is a civil court .... ( emphasis is ours) 18. Considering the Constitution Bench Judgment, it is clear that when the tax/duty collected by misinterpreting or misapplying the provisions of the Act or rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. Considering the principle laid down by the Supreme Court in Constitution Bench judgment, it is incumbent upon the person claiming refund of the duty / interest paid, has to claim it in accordance with provisions of the Act. Considering Section 11B of the Act, it is clear that for claiming refund under the Act, a person is to apply for the refund, in a prescribed form, of the duty / interest paid under protest, within a period of one year from the relevant date. Under Explanation below Section 11B of the Act, relevant date is also defined and therefore, it was incumbent upon the petitioner to file refund claim in prescribed form within a period of one year from 7.8.2007 i.e. the order passed by the Tribunal in favour of the petitioner. In our view, the ratio propounded by the Constitution Bench of the Supreme Court, clearly obliges the petitioner to file refund claim in accordance with the Act. Therefore, not only this petition is not maintainable as equally efficacious remedy is not exhausted but it cannot be entertained under Article 226 of the Constitution of India as petitioner has not fulfilled the requirements to claim refund in accordance with the Act, as also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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