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TMI Blog2024 (9) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11B of the Central Excise Act, 1994. A mandamus can be issued only when there is a corresponding statutory duty on the respondent to consider the petitioner s refund claim beyond the period of limitation. Since, refund claims have to be filed beyond the period of limitation prescribed under the Scheme of the Finance Act, 1994, incorporating Section 11B of the Central Excise Act, 1994, no case is made out for issuance of a mandamus. In this petition, refund claim has been filed long after expiry the period of limitation under Section 11-B of the Central Excise Act, 1944 as made applicable to Service Tax under Finance Act, 1994. Therefore, there is no merits in the present writ petition. Petition dismissed. - Honourable Mr. Justice C. Saravanan For the Petitioner : Mr.Harish Bindumadhavan For the Respondent : No Appearance ORDER This writ petition has been filed for the Mandamus to direct the respondent to accept the refund application filed by the petitioner in Form R dated 11.02.2019 and grant the refund along with interest. 2. The refund claim pertains to service tax allegedly paid during the Financial Year 2016-17 under the Finance Act, 1994. 3. The petitioner is seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 83. Application of certain provisions of Act I of 1944. * The provisions of the following sections of the Central Excises and Salt Act, 1944, as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise:- 9C. 9D, 11, 11B, 2B, 120, 120, 12E, 14, 15, 35F to 350 (both inclusive), 350, 36, 36A, 368, 374, 373, 37C, 37D and 40 . [Central Excise Act, 1944] 7. Section 11(B) of the Central Excise Act, 1944 is one of the provisions which has been made applicable in relation to service tax under Section 83 of the Finance Act, 1994. Section 11(B) of the Central Excise Act, 1944 have been made applicable in relation to Service tax. Therefore, under refund claim, of service tax. Under Section 11(B) of the Central Excise Act, 1944, a refund claim has to be made within a period of one year from the relevant date . 8. The expression a relevant date has also been defined in Explanation to Section 11(B) of the Central Excise Act, 1944. It reads as under:- (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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India vs. ITC Ltd., 1993(67)ELT 3(SC) which was relied by Division Bench of this Court in CMA.No.601 of 2018 in the case of M/s.3E Infotech, 11 B/1, 2nd Floor, New Street, Parvathipuram, Nagercoil, Kanyakumari 629 003. vs. 1. Customs, Excise Service Tax Appellate Tribunal, No.26, Shastri Bhavan, Annex Building, Haddows Road, Chennai 600 006 and another , is primarily an authority for unjust enrichment under Section 11B of the Central Excise Act, 1994. 11. The said decision incidentally touched on Limitation in para 13 to 15. The decision of the Hon'ble Supreme Court in Union of India vs. ITC Ltd., 1993(67)ELT 3(SC) has been diluted by the Hon'ble Supreme Court in Mafatlal Industries Ltd. v. Union of India , (1997) 5 SCC 536 in sofar as limitation. In para 13 to 15, the Hon'ble Supreme Court in Union of India vs. ITC Ltd., 1993(67)ELT 3(SC) observed as under :- 13. Again, in paragraph 3 of the stay application (CMP No. 24970 of 1982), it has been inter alia stated: It may be further stated that the respondent will not be in any manner prejudiced since they have already realised from their customers the excise duty on the manufactured goods. The balance of conven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of six months shall not apply where such duty has been paid under protest. Sub-section (2) of Section 11-B inter alia provides that the Assistant Collector of Central Excise while entertaining the claim for refund of duty may order the refund of the amount of duty paid by the claimant provided he had not passed on the incidence of such duty to any other person. The thrust of the amendment vide Section 11-B(2) of the Act is that the refund of duty paid by the manufacturer can be allowed, if due, only in cases where the assessee has not passed on the incidence of such duty to any other person. 15. Sub-section (3) of the amended Section 11-B provides: (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). 12. As mentioned above, the above view was diluted by the Hon'ble Supreme Court in Mafatlal Industries Ltd. v. Union of India , (1997) 5 SCC 536 In para 99, the Hon'ble Supreme Court has summarised the position of law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 emphasise 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 departmental organ but to this Court, which is a civil court. ( ii ) Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception: Where a person approaches the High Court or the Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched. ( 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 has 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 manufacturer or importer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been wrongly decided to the above extent. This declaration or the law laid down in Propositions ( i ) to ( vii ) above shall not however entitle the State to recover the taxes/duties already refunded and in respect whereof no proceedings are pending before any authority/Tribunal or Court as on this date. All pending matters shall, however, be governed by the law declared herein notwithstanding that the tax or duty has been refunded pending those proceedings, whether under the orders of an authority, Tribunal or Court or otherwise. ( ix ) The amendments made and the provisions inserted by the Central Excises and Customs Law (Amendment) Act, 1991 in the Central Excises and Salt Act and the Customs Act are constitutionally valid and are unexceptionable. ( x ) By virtue of sub-section (3) to Section 11-B of the Central Excises and Salt Act, as amended by the aforesaid Amendment Act, and by virtue of the provisions contained in sub-section (3) of Section 27 of the Customs Act, 1962, as amended by the said Amendment Act, all claims for refund (excepting those which arise as a result of declaration of unconstitutionality of a provision whereunder the levy was created) have to be preferre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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