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TMI Blog2002 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... estion is subject to the handloom Cess, whereas the fabric in question was falling under Chapter 52.09 of the Central Excise Tariff Act, 1985, chargeable at nil rate of Basic Excise Duty. Prior to the introduction of the aforesaid Act of 1985, the fabric in question fell under classification No. 19-I(B) of the First Schedule to the Central Excise and Salt Act, 1944 and that too, was chargeable to nil rate of Basic Excise Duty. The petitioner Company entertained a doubt whether the Handloom Cess is leviable on the fabric in question from the query raised by one of its customers viz; Jeetu Agencies in the letter dated 14-12-1988. In the said letter, M/s. Jeetu Agencies questioned the petitioner Company as to charging of Handloom Cess in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided by Section 11-B of the Central Excise Act but by the General Law of Limitation i.e. within the period of three years from the date of discovery of mistake. 3.Mr. N.M. Lodha, Central Government Standing Counsel, has raised an objection with respect to the maintainability of the writ petition on the ground of alternate remedy. It is submitted that against the impugned order of the Assistant Collector, an statutory appeal is maintainable before the Collector (Appeals) as provided under Section 35(C) of the Central Excise and Salt Act, 1944. Per contra, it is submitted by Mr. M.S. Singhvi that the provisions of the Central Excise Act are not attracted as the cess has been paid by mistake under the provisions of the Handloom Industries De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etion mould and restrict the relief in the manner appropriate to the situation. 6.In Mafatlal Industries v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.) = 1997 (5) SCC 536, the Apex Court held that the concept of economic justice demands that in the case of indirect taxes like Central Excise duties and Customs duties, the tax collected without the authority of law shall not be refunded to the assessee, unless he alleges and establishes that he has not passed on the burden of duty to a third party and that he himself has borne the burden of the said duty. The Court observed thus : "One of the equitable considerations may be the fact that the person claiming the refund has passed on the burden of duty to another. In other words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee had specifically pleaded that they did not pass on the liability of water cess on their customers. For the convenience, para 25 of the judgment is extracted as follows : "The respondents had specifically pleaded that they did not pass on the liability of the water cess on their customers; it appears this contention was not denied by the petitioners before the High Court. On the other hand the only plea taken by the petitioners was that money had been passed to the Central Government under Section 8 of the Act. It was brought to the notice of the Court by the respondents that 65% of the sugar was sold by the respondents through public distribution system under the Essential Commodities Act. Hence there was no question of unjust enri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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