9911796707
TMI Blog1997 (9) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... sive of the excise duty was stipulated and the appellant Company was to pay the excise duty. In terms of the Notification No. 201/79, issued by the Central Govt., the excise duty was paid by the respondent Company on hardened rice bran oil under Tariff Item 68 at the time of its clearance. After the receipt of the raw material by the appellant Company, the Central Govt. used to refund the element of excise duty keeping in view the finished goods manufactured by the appellant Company and the appellant used to return the entire duty to the respondent Company. In this manner the liability of the respondent Company to pay the excise duty on hardened rice bran oil was nil. Notwithstanding that the respondent Company raised a dispute regarding the classification of hardened rice bran oil. It pleaded that the goods were classifiable under Tariff Item No. 12 and not under Tariff Item No. 68. At one stage it had raised protest against the payment of excise duty under Tariff Item No. 68 but vide letter dated 29-3-1984 written to the Superintendent, Central Excise, Range-II, Ludhiana. The respondent Company withdrew its protest. The dispute relating to classification of the goods came to be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y amount was collected by them from their customers who, in turn, got it back from the Department by way of credit under Notification No. 201/79-C.E., dated 4-6-1979, as amended. Thus, in essence, the Department had already refunded the amount of duty collected by it earlier. If at this stage, the appellants are again given the refund, the Department would be refunding the amount second time, an unacceptable proposition. In the circumstances, the Lower Authority has correctly rejected the refund claim." 4.The respondent Company challenged the order of the Assistant Collector in C.W.P. No. 3120/1985. After its appeal was rejected by the Central Excise (Appeals) respondent No. 5, the respondent Company amended the writ petition and challenged the legality of the appellate order as well. The appellant Company which was likely to be affected by the decision of the writ petition sought its impleadment as party respondent. The learned Single Judge rejected its application. However, on appeal, the Supreme Court reversed that order and directed the High Court to hear the appellant Company as a party respondent. 5.By the impugned judgment the learned Single Judge has ordered the refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries v. Union of India and Another - AIR 1971 AP 69; 10. Union of India v. Mansingka Industries Pvt. Ltd. - 1979 (4) E.L.T. (J 158); 11. Associated Bearing Company Ltd. v. Union of India and Another - 1980 (6) E.L.T. 415; 12. Maharashtra Vegetable Products Pvt. Ltd. and Another v. Union of India and Others - 1981 (8) E.L.T. 468; 13. Paper Products Ltd. v. Union of India - 1981 (8) E.L.T. 538; 14. Madras Fertilizers Ltd. v. Assistant Collector of Central Excise, Madras and Others - 1981 (8) E.L.T. 194; 15. Prem Cables P. Ltd. v. Assistant Collector Customs - 1981 (8) E.L.T. 440; 16. Assistant Collector of Customs, Madras and Others v. Prem Raj Ganpat Raj & Co. (Pvt.) Ltd. - 1978 (2) E.L.T. (J 630); 17. Wazir Sultan Tobacco Co. Ltd. v. Union of India and Others - 1981 (8) E.L.T. 140; 18. Hyderabad Asbestos Cement Products Limited v. State of Andhra Prade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. (ii) xx xx xx xx xx xx xx xx xx xx xx xx xx A(iii) claim for refund, whether made under the provisions of the Act as contemplated in proposition (i) above in a suit or writ petition in the situations contemplated by proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and established that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not so passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
