9911796707
TMI Blog2001 (3) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in tariff Item No. 68 (NES) of the First Schedule to the Act of 1985. These items subsequently have been included under Chapter Nos. 73, 84 and 85 in the Schedule of the Act of 1985. 3.Petitioner is contending that the petitioner is entitled for complete exemption in respect of the items included in the schedule, particularly with which the petitioner is concerned. According to the petitioner, it manufactures, non-conventional energy systems, which stand exempted from the payment of whole of the excise duty in pursuance of the notifications referred to above. Worth it is to note at this stage, the items manufactured by the petitioner appear at Sr. No. XIV, as is clear from Annexure 'A' page 24 of the petition. 4.It is the case of the petitioner that on the basis of the Notification dated 15-5-1981, bearing No. 120/81-C.E., the petitioner was entitled to claim exemption from payment of excise duty on the rice husk fired boilers and rice husk fired boiler parts. The classification list, under Rule 173B of the Rules framed under the said Act, in respect of the petitioner, stood necessarily approved by the Department granting exemption to the petitioner and to be precise for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, Ghaziabad (Uttar Pradesh) against GP No. 127, dated 3-3-1986; GP No. 138, dated 29-3-1986; GP No. 04, dated 13-4-1986; GP No. 09, dated 23-4-1986; GP No. 10, dated 24-4-1986; GP No. 15, dated 3-5-1986; GP No. 16, dated 4-5-1986; GP Nos. 18 and 19, dated 12-5-1986; GP No. 23, dated 17-5-1986; GP No. 24, dated 17-5-1986; GP No. 41, dated 21-6-1986 and GP Nos. 65 and 66, dated 12-8-1986. In short, on the basis of the abovesaid GPs, the material has been cleared on payment of excise duty in respect of which the petitioner claimed exemption and refund of the same contending that the payment so made was under protest. 8.Relying on the Notification No. 120/81-C.E., dated 15-5-1981, the petitioner claimed that since the rice husk fired boiler was considered as agricultural and municipal waste conversion devices producing energy, the petitioner was entitled for the exemption claimed and for refund of the excise duty paid. A demand in that respect is made by the petitioner on 24th January, 1987. In fact, for the first time, such a valid claim was made by the petitioner, as prior to that, a claim was made by letter dated 9-12-1986, however, the same was made in a defective manner and, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onkar, learned Standing Counsel, the present petition should not have been entertained and cannot be entertained. He, further, contended that even though the petition is admitted long back, the same can be dismissed at this stage on this sole ground. In support of his contention, Shri Godhamgaonkar, learned Standing Counsel relied upon a decision reported in AIR 1983 SC 603, in the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa. Shri Godhamgaonkar, learned Standing Counsel further contended that there is no material placed on the record by the petitioner to demonstrate that the excise duty which is said to be paid by the petitioner was paid under protest. To weigh and appreciate the argument of Shri Godhamgaonkar, learned Standing Counsel, we had pointed question to the learned Counsel for petitioner to show any material on the record, so as to convince the Court in respect of payment having been made under protest. However, the learned Counsel for the petitioner was unable to point out a single document on the basis of which it could be traced that the payment of excise duty as made by the petitioner in respect of abovesaid items was under protest. To find out whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been paid under protest. From the reading of the abovesaid Section, it is clear that to get relieved from the application of the limitation of six months, the petitioner has to show that the tax or excise duty was paid under protest and application has to be strictly made in pursuance of the provisions of Section 11B of the Act and necessary documents of having paid the excise duty are to be attached with the form. To find out as to whether payment is made under protest or not, it would be appropriate for us to have the help from Rule 233B of the Rules framed under the said Act. Sub-rule (1) of Rule 233B specifically directs that an assessee who desires to pay the duty under protest, has to deliver to the proper officer a letter to this effect and has to give grounds for payment of duty under protest. Sub-rule (2) of Rule 233B directs that on receipt of such letter under protest, the officer has to acknowledge the receipt to that effect and such an acknowledgement, subject to the provisions of sub-rule (4) of Rule 233B shall be the proof that the assessee paid the duty under protest from the day on which the letter of protest was delivered to the proper officer. Another mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e within six months of the payment thereof. However, rest of the claim was pertaining to the duty paid under gate-passes beyond six months from the date of filing refund claimed in question. 12.Since there is no question of any illegal recovery and since it is further clear that the petitioner had paid the excise duty under bona fide belief that he was liable to pay the same and since he further did not pay the same under protest, there is hardly any scope for the petitioner to get himself relieved from the clutches of Section 11B of the said Act. In our opinion, therefore, the petitioner cannot be said to be entitled to the relief of refund of the complete amount of excise duty paid by him, but he is definitely entitled for refund only to the extent which falls within the period of six months as contemplated under Section 11B of the said Act. We, therefore, do not find any illegality in the decision taken by the adjudicating authority in not refunding the amount of Rs. 2,64,327/-. From this position, it is also clear that even, according to the Department, if the petitioner would have claimed the refund well within time, the petitioner would have been entitled for the same. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent petition. Keeping in view these facts, we will have to find out, will it be appropriate to dismiss this petition on the ground that the petitioner had an alternate remedy available then in the year 1988 itself. We see that it is not the case of the petitioner that he paid the excise duty under some mistaken notion of law and, therefore, he filed the present petition for refund of the tax or the excise duty he paid. Having lost the limitation, to circumvent the same, the present petition is filed. It is also not the case of the petitioner that under the mistake of law the Department recovered the excise duty, so as to enable the petitioner to approach this Court under Article 226 of the Constitution of India. If the petitioner would have been slightly diligent enough, he could have conveniently avoided to make the payment of excise duty which he cleared through gate-passes, which were in between the period from 3-3-1986 to 17-5-1986. In our view also, therefore, the claim between the abovesaid period for refund of the excise duty paid by the petitioner, is definitely hit by the limitation of six months given under Section 11B of the said Act, however, the claim to which he was o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
