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TMI Blog2020 (2) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the way for the rightful refund of excise duty in consonance with Article 265 of Constitution of India which does not permit the State to collect the tax or duty without authority of law. The refund is for clearances of goods in question pertains to period from 1994. Already 26 years have passed due to one mistake in the decision taken by the Assessing Authority. The intention of Adhoc exemption itself was a glaring fact available before the Assessing Authority. Particularly the clarification issued on 30.06.1995 makes it clear that exemption was applicable for the entire quantity of goods supplied but ignoring this fact, the Asseesing Authority passed an order denying the refund partially, invoking the technical plea of limitation ignoring the exemption under the Second Proviso of Section 11B of the Act, whereby no limitation would apply when payment of Duty is treated as payment made 'under protest'. The present Writ Petition filed by Assessee Steel Authority of India Ltd., deserves to be allowed - Petition allowed - decided in favor of petitioner. - W.P.No.14238 of 2005 - - - Dated:- 12-2-2020 - Dr. Justice Vineet Kothari And Mr. Justice R. Suresh Kumer Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuary 1994 itself, but the exemption notification was issued by CBEC only after nine months from 21.09.1994, the Excise duty was paid initially by the Assesssee on its own and which was not charged from the Department of Economic Affairs and later on in the month of November 1994, the Assesssee made a claim for refund of the entire Excise duty between 01.01.1994 to 12.10.1994. The Assesseing Authority however vide its order dated 7.08.1995 allowed only a part refund to the extent of ₹ 84,70,749/- for the period from 18.05.1994 to 12.10.1994 but disallowed the remaining claim on the ground of limitation under Section 11B of the Act stating that the claim of refund was made beyond the period of six months limitation as envisaged under Section 11B of the Act. Subsequently, a Corrigendum to the order in original was issued on 14.09.95 stating that the refund amount is admitted only to the extent of ₹ 51,49,421/- after adjusting the MODVAT Credit holding that the clearances of Coin Blanks is exempted from payment of Excise duty. Aggrieved by the same, the Assessee took the matter further to the Commissioner of Customs and Central Excise (Appeals) who rejected the Appeal v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue authorities, which was clarified by the Board in the aforesaid letter. On this basis, it was held that the limitation provisions of Rule 11 ibid had no application to refund claim. According to the present appellants, the ratio of the High Court's decision is in support of their plea that the limitation provisions of Section 11B are not applicable to the refund claim in question. The Revenue, through ID.SDR, has rebutted this argument by correctly distinguishing the instant case from the Bata Shoe Company case. We also do not find any parallel between the two cases . In the Batta Shoe Company's case, the payment of duty was under protest right from the beginning, whereas in the instant case the duty was not paid under protest. Again, in the Batta Shoe Company's case, the Board's letter was held to be a clarification of the prevailing law, whereas in the instant case the ad-hoc exemption order issued by the Central Government under Section 5A(2) of the Central Excise Act operated in an entirely different way. The exemption order granted exemption from payment of duty in respect of coin blanks, which were otherwise eligible to duty of excise under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 944. It was argued by the assessee that, if the department reopened the past assessments for raising such demands, it would be harsh for them. This apprehension was rejected by their Lordships who observed that any such demand would be subject to time-bar provisions of Section 11A of the Act. Ld.SDR has argued that, just as a retrospective demand of duty is subject to limitation under Section 11A, a refund claim based on retrospective exemption should be subject to time-bar under Section 11B. We appreciate this argument and observe that J.K.Spinning Weaving Mills (supra) is yet another assertion, by the apex Court, of the rule of strict construction and application of limitation provisions. 14. We have made a mention of the Modvat credit issue raised in this case. This issue has already been settled by this Bench as per Final Order No.1701/01 dated 28.9.2001 in Appeal No./1896/97-Md. reported in 2002 (139) ELT 415 (Tri.-Chennai) [Steel Authority of India Vs. Commissioner of Central Excise, Coimbatore], whereby denial of Modvat credit to the extent of ₹ 85,91,276/- to the appellants was affirmed and the demand raised in corrigendum issued by the authorities was set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made specifically under protest, the Proviso would not apply and the Assesssing authority was justified in refusing to the extent which is barred by limitation. She submitted that duty in question was paid by the Assessee at the time of clearance to the goods under the self assessment scheme which itself amounts to Assessment. Therefore, unless the Assessee could secure exemption from the authority viz., CBEC in not applying the limitation under Section 11B of the Act the action of the Assessing Authority cannot be faulted. 7. We have heard the learned counsels for both sides and perused the records. 8. The case arises in a peculiar circumstance inasmuch as the Assessee was granted exemption for specific quantity of Coin Blanks manufactured by it as per the order passed by the CBEC and to avoid cost of Manufacture of such Coin Blanks exceeding the value, the exemption under question was sought for by the Assesee with the customer viz., Department of Economic Affairs, which was finally granted only on 30.06.1995 after processing the claim for exemption. But to maintain time schedule for supply, the Assessee Company have not only imported major part of 5050 MTs of Coin Blank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty in consonance with Article 265 of Constitution of India which does not permit the State to collect the tax or duty without authority of law. 11. While on the one hand the fixed quantity exemption from whole of the duty granted on 21.09.1994 in this case was consciously granted by the Central Government knowing that supplies have already been made in January 1994 the same was successfully defeated partially by the Assessing Authority taking a narrow and pedantic view of the limitation in the matter. It was open to the Assesseing Authority to seek a clarification from his higher authorities, as to whether the payment by the Assessee with regard to the clearance of these goods in question could be treated as payment 'under protest' or not as the assessee itself is a Government of India Undertaking, but instead of doing that, taking a shortcut pro-revenue approach, the Adjudicating Authority thought it better to adopt a negative approach of denying the refund on that ground, pushing the Government of India Undertaking into the whirlpool of litigation, which resulted in severe loss of public time and money and time of the valuable time of the Courts. 12. The refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of the prevailing law on the point and that the payment of duty by the assessee for the aforesaid period was not occasioned by their mistake or misconception. On the other hand, the Court held that the payment of duty was of a purely compulsive mode of recovery by the Revenue on the basis of misconception of the Revenue authorities, which was clarified by the Board in the aforesaid letter and therefore the Assessee was entitled for refund. 12. The said Judgment in our understanding, was on all fours with the facts of the present case. But the learned Tribunal preferred to follow only Tribunal's earlier view in the case of Ion Exchange (supra) instead of a High Court decision. The learned Tribunal, the highest Appellate forum under the Act chose to lean in favour of the Revenue just for the sake of it. The very hope of Assessee to get a fair justice apart from the typical pro-revenue approach of the Revenue Authorities was also belied by the learned Tribunal in the present case, totally ignoring the total ad-hoc exemption for the specific quantity including the purpose thereof and the payment thereof could be very well treated as payment made 'under protest' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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