9911796707
TMI Blog1995 (11) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... les, the Assistant Collector of Customs classified the goods for assessing duty under the Heading No. 70.21, which related to 'other articles of glass', in view of Chapter Note 3 of Chapter 17, which states, "for the purposes of this schedule 'glass' is to be taken to extend to fused quarts and fused silica". Item No. 23A(4) of CET states that for other glass and glassware including tableware the duty shall be as prescribed therein. Under Section 3 of the Customs Tariff Act, 1975 (Act No. 51 of 1975 - for short CUSTA'), "any article which is imported into India shall, in addition, be liable to a duty (hereinafter in this section referred to as additional duty) equal to the Excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the imported article." Hence under CUSTA, the additional duty should be equal to the excise duty on a like article manufactured in India. 4.The company filed claim petitions for refund on the ground that silica crucibles were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ Petition Nos. 2914, 2915, 2916, 2947 and 2948 of 1984 for issue of Mandamus directing (1) the Collector of Customs, Customs House, Madras - 600 001; (2) Union of India through the Secretary, Ministry of Finance, Department of Revenue and Banking, Central Secretariat, North Block, New Delhi; and (3) the Assistant Collector of Customs (Refunds), Customs House, Madras - 600 001 - (appellants in all Writ Appeals - respondents), to refund the sum of Rs. 1,46,918.81, Rs. 31,195.73, Rs. 1,62,281.81, Rs. 26,648.16 and Rs. 76,648.16, being the amount collected as additional duty or countervailing duty under item 23A(4) of CET respectively on bill entries Nos. D.1211, dated 28-4-1982; D.1212, dated 22-3-1980; D.262, dated 5-7-1982; D.1105, dated 19-12-1980 and D.1106 dated 19-12-1980. 10.During the pendency of the above Writ Petitions, the Central Excises and Customs Laws (Amendment) Act, 1991 (Act 40 of 1991 - for short 'Amendment Act'), which was published in the Gazette of India, Extraordinary, Part II Section 1, No. 54, dated 18th September, 1991 came into force. 11.Sub-sections (2) and (3) of the substituted Section 27 and the newly introduce provisions, namely, Sections 28C and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to assessment, sales invoice and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 28D.Presumption that incidence of duty has been passed on to the buyer. - Every person who had paid the duty on any goods under this Act shall, unless the contrary is proved by him be deemed to have passed on the full incidence of such duty to the buyer of such goods." 12.After the amendments came into force, the appellants-respondents filed a counter --- contending that the Writ Petitions were not maintainable, inasmuch as under Section 27(3) of the amended Act, no refund could be made, except as provided for under sub-section (2) of Section 27 and therefore, the company should file an application before the Assistant Collector of Customs, who alone was entitled to scrutinise the application and pass appropriate orders thereon, after considering the following questions, namely, (1) Whether the claims made in these Writ Petitions were or not barred by limitation? (2) Whether the incidence of duties was or not passed on to anyone in the course of the trade? and (3) Whether the disputed duty has or has not been paid under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as above, learned single Judge, by order dated 20-3-1992, allowed all the Writ Petitions as prayed for without costs, giving rise to the present appeals, which were taken on file on 13-7-1992. 15.Writ Petition No. 15237 of 1994 came to be filed on 25-8-1994 before a learned single Judge of this Court, who, in turn, ordered notice of motion returnable in three weeks on 30-8-1994. On 20-9-1994, Mr. K. Jayachandran, learned Additional Central Government Standing Counsel, took notice for the respondent and the said Writ Petition was posted, at request, on 26-9-1994, on which date, it stood adjourned initially to 5-10-1994 and to further subsequent dates and ultimately, on 8-11-1994, the said Writ Petition had, however, been admitted and Rule nisi issued calling for records within eight weeks. 16.The jurisdictional or foundational facts leading to the filing of the said Writ Petition arise this way : (a) SRF Limited (petitioner), it is a company incorporated under the Indian Companies Act, 1956, it is said, is a leading manufacturer of industrial fabrics having its registered office at Express Building, 9-10, Bahadur Shah Zafar Marg, New Delhi-110 002 and one of its manufacturing u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'under protest'. (g) While the refund application was pending before the respondent, Section 11B of CESA was amended with effect from 20-9-1991, substantially, besides newly introducing Sections 12B and 12C, by the Amendment Act. (i) The amended Section 11B reads as under : "11B. Claim for refund of duty. — (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date in such form as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excise and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that the amount of duty of excise as determined by the Assistant Collector of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Collector of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; (f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 28B of the Customs Act, 1962 (52 of 1962); (c) any income from investment of the amount credited to the Fund and any other monies received by the Central Government for the purpose of this Fund." (h) Subsequent to the Amendment of Section 11B and the introduction of new Sections 12B and 12C by the Amendment Act, the respondent issued a notice dated 6-1-1992 calling upon the petitioner to show cause why the amount of refund claimed by the petitioner should not be credited to the Consumer Welfare Fund in terms of sub-section (2) of Section 11B read with Section 12C of CESA. (i) There was no dispute regarding the claim for refund and the sum claimed by the petitioner as refundable. The only issue that was raised by the respondent was that the amount claimed as refund should be credited to Consumer Welfare Fund and not to the petitioner. (j) The show-cause notice went on the premise that even though RF solution is consumed in the manufacture of REL solution, the petitioner could have passed on the burden of duty to consumers indirectly, as the value of finished goods would have included the duty paid on RFL solution. (k) The petitioner filed a detailed reply on 3-4-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said, knocked at. 17.The pith and substance of the counter filed by the respondent is reflected as below : (a) RF solution, which has no shelf-life, was however, originally construed to be 'goods' and consequently, duty had been levied and collected from the petitioner, of course, 'under protest' from 17-10-1983. The petitioner agitated the matter by way of appeal to the Collector (Appeals) and further appeal to CEGAT, which remanded the case to review afresh in the light of the various points raised by the petitioner to the original authority, that is to say, the respondent - Assistant Collector of Customs, who, in turn, after giving a personal hearing, passed an order No.64/90 dated 29-9-1990 holding that RF solution is not 'goods'. The duty thus paid under mistaken impression of law, for the period from 17-10-1983 to 20-10-1986, amounting to Rs. 5,41,498.67 is not at all refundable to the petitioner inasmuch as RF solution is used as a raw material or input in the manufacture of RFL solution, which again is used in the manufacture of 'dipped man made fabrics' and thus, forming part of the cost of the final product and consequently, passing on the duty paid indirectly to the bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of these submissions the inspection as prayed for is allowed in the aforesaid terms. It is also further ordered that after the inspection, an affidavit along with the report of the inspecting officer should be filed and a copy of such affidavit and the report shall also be furnished to the appellant* before it is filed into the Court. Parties pray for two weeks time to complete the inspection and to file the report. Therefore, we direct these appeals be called on 8-9-1995 for filing the report." (*"Appellant" herein means 'Company' - as earlier indicated) 20.One Vivek C. Khole, Appraiser, Office of the Commissioner of Customs, Customs House, Madras-600 001, accordingly inspected the factory premises of the Company on 30-6-1995 and filed his report dated 4-9-1996, which reads as under : "Report of visit to the Indo-Swiss Synthetic Gem Manufacturing Company Limited, Mettupalayam - 641 301 on 30-8-1995. I visited M/s. The Indo-Swiss Synthetic Gem Manufacturing Company Limited on 30-8-1995 after giving notice as per Order of Hon'ble Madras High Court and studied the manufacturing process. In brief the Manufacturing activity of Synthetic Gems can be described as given below :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants; Mr. Habibullah Badsha, learned Senior Counsel representing M/s. B. Sashidharan & D. Mythili, learned Counsel appearing for the respondent (in Writ Appeals) as well as petitioner (in Writ Petition) and Mr. K. Jayachandran, learned Additional Central Government Standing Counsel appearing for the respondent (in the Writ Petition), the points, as below, arise for consideration : (1) Whether the Scheme of the Amendment Act envisages a direct transfer of the burden of duty of customs or excise, along with the sale of the same goods to the buyer? (2) Whether the doctrine of unjust enrichment is applicable to cases, where the goods, in respect of which duty of customs or excise had been paid, are either consumed or used in the manufacture of other products? (3) On whom rests the burden to prove that the incidence of duty has not been passed on to the buyer or borne by the assessee himself and what are the consequences to flow from such failure therefor? (4) Whether in pari materia provisions adumbrated under Section 11B of CESA and Section 27 of the Act and other provisions as amended and inserted with effect from 20-9-1991 are applicable retrospectively to refund claims alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption along with an affidavit is furnished before the Customs Department. The Customs Department, after varification, cancels the bond. (b) Under Notification No. 35/81-CE, dated 1-3-1981, an exemption is granted to waste or scrap of copper, zinc, aluminium and lead, if used in the manufacture of chemicals. Exemption is granted from the whole of the duty of excise leviable inter alia on copper scrap provided that : (i) it is proved to the satisfaction of an officer not below the rank of Assistant Collector of Central Excise that the said waste or scrap is intended to be used in the manufacture of chemicals; and (iii) in respect of such use elsewhere than in the factory of production of the aforesaid waste or scrap, the procedure as set out in Chapter X of the Central Excise Rules, 1944 is followed. (c) The dispute related to the recovery of countervailing duty, that is to say, Additional Customs duty in respect of copper scrap so imported by the petitioners. (d) In order to avail of the aforesaid exemption notification for the purpose of countervailing duty, the petitioners undisputedly complied with the first condition, namely, that the copper scrap imported by them was used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumer Welfare Fund as per the sections. (2) If the duty is passed on to the buyer, the right to recover the duty is also passed on to the buyer of the imported goods. Provided that the buyer has not in turn sold these goods and passed on the duty to the next buyer. (3) The converse situation contemplated is where the importer uses the goods himself. Here there is no question of passing on the incidence of duty to anyone-else since the goods imported are not sold to anyone-else. Hence he can get the refund. Therefore the question of unjust enrichment arises under the amended scheme when refund is asked for by a person who has sold the imported goods and in the process directly passed on the burden of duty to the buyer. Clauses (a), (b) and (c) of the proviso to Section 27(2) and the presumption laid down under Section 28D make this very clear. In the present case the imported copper scrap has not been sold by the petitioners to anybody. They have used the scrap themselves for the manufacture of chemicals. The petitioners have therefore not passed on the duty paid by them on copper scrap to any buyer of copper scrap. Had they done so, the buyer of this imported scrap could have cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or importer of goods shall not be entitled to refund of the duty of excise or, as the case may be, the duty of customs if he has already passed on the incidence of such duty to the buyer; (b) the burden of proof that the incidence of the duty has not been passed on to the buyer shall be on the person claiming the refund; (c) every person, who is liable to pay duty of excise or, as the case may be, the duty of customs on any goods, shall be under an obligation to prominently indicate, at the time of clearance of the goods, in all the documents, relating to assessment, etc., the amount of duty which will form part of the price at which such goods will be sold; (d) the refund of any of the said duties is proposed to be made only to the person who has ultimately borne the incidence of such duty; (e) xxxxx xxxxx xxxxx (f) xxxxx xxxxx (g) it is also proposed to provide that where any manufacturer or importer of goods has collected any amount in any manner from the buyer as representing the duty of excise or, as the case may be, the duty of customs, he shall pay the said amount to the credit of the Central Government and the said amount shall be utilised in adjusting the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional duty of customs can be passed on directly. Since the additional duty of customs has not been directly passed on by the petitioners to any third party by selling the imported goods, they are entitled to claim refund of this amount under proviso (a) to Section 27(2) of the amended Section 27. It was also submitted before us26. that in any case since this is a claim for recovery of monies paid under a mistake of law in a petition under Article 226 of the Constitution, the provisions of the Central Excises and Customs Laws (Amendment) Act, 1991 cannot apply in any event. In view of our earlier findings, it is not necessary for us to examine this aspect of the submission which is made before us." 24.In Union of India v. ITC Limited [1993 (67) E.L.T. 3 (S.C.)], the respondent carried on the business of manufacturing and selling cigarettes and smoking tobacco at its five cigarette factories, including one at Saharanpur in the State of Uttar Pradesh. The respondent sells its products to wholesale buyers or dealers, who make further sales to secondary wholesalers from where the products reach the retailers and the consumers. During the period between September 1, 1970 and Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uashing of the order of the Collector of Central Excise (Appeals) dated 30-12-1975 and also sought a direction by way of Mandamus for refund of the sum of Rs. 49,90,043.01 with interest at 12 per cent per annum thereon. (d) The Division Bench of the Delhi High Court came to the conclusion that on account of a mistake of law, excess excise duty had been paid by the respondent and received by the Department. The Bench held that there was a legal obligation on the part of the Government to return the excess excise duty received/recovered by it since the same was not payable by the party. Relying upon their earlier judgment in Chemicals & Plastics and Another v. Union of India & Others, CWP No. 147/79, decided on 10-7-1979, the Division Bench allowed the writ petition filed by the respondent and held that the respondent could not be non-suited on the ground of limitation. The Court set aside the order of the Collector of Central Excise (Appeals) and detailed the Department to refund the sum of Rs. 49,90,043.01 to the respondent. The Bench observed :- "The duty of excise can be which is levied in accordance with the Act and any money which is realised in excess of what is permissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of excise in relation to which the refund was being claimed had not been passed on to any other person. The arguments were heard finally on 14-5-1993 and the judgment was reserved, though liberty was granted to learned counsel for the parties to file written submissions, if any, in support of their arguments. The respondent filed written submissions on 31-5-1993. Along with the written submissions an affidavit was also filed. No other material or documentary evidence, to establish that the burden of excess excise duty had been borne by it and not passed on to any other person, was filed. The Union of India filed their written submissions on 21-6-1993. 25.In the light of the background facts, as stated above, the Supreme Court happened to consider the retrospectivity of the amended provisions of Section 11B of CESA and expressed in paragraphs 15, 16 and 17 (at pages 11-14) thus : It" is, thus, seen that under Section 11B(3) (supra) no refund shall be made except as provided for in sub-section (2), as amended, notwithstanding anything to the contrary contained in any judgment, order or direction of the Appellate Tribunal or any court or in any other provisions of the Act or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent to the contrary is not only spacious but also fallacious. In this connection, it would also be advantageous to note a judgment of a three Judge Bench of this Court in Union of India & Others v. Jain Spinners Limited and Anr. [1992 (61) E.L.T. 321 (S.C.) = 1992 (4) SCC 389], as the law on the question of retrospectivity of Section 11B(3) has been settled therein. In Jain Spinners' case (supra), refund was allowed by the Assistant Collector as a result of the approval of the classification list as filed by the assessee provisionally. Subsequently, on receipt of a test report from the Deputy Chief Chemists, the department took the view that the refund had been erroneously granted and sought to recover it by issuance of a notice. The Assistant Collector confirmed the demand for payment of the duty amount which had been erroneously refunded. The assessee questioned the order of the Assistant Collector through a writ petition before the High Court and also by filing an appeal before the Collector of Central Excise (Appeals). The High Court issued an interim stay in favour of the assessee against the demand confirmed by the Assistant Collector's order subject to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on the incidence of duty to others, it was not entitled to receive the refund. The High Court at the time of hearing of the contempt petition on 20-4-1992 was apprised of the order of the Assistant Collector; but it held that the decision of the Assistant Collector was not a decision of the Government and directed the Union of India to deposit the entire amount of refund with bank interest on or before 24-4-1992. It was in this background, that the Union of India filed an appeal before this Court against the order dated 20-4-1992 passed by the High Court to give effect to its earlier order dated 19-2-1986. This Court held that the High Court's order of 19th February, 1986, under which alone the refund was claimed could not be an exception to the provisions of Section 11B(3) of the Act, and that the High Court could not have made any order, after September 20, 1991 directing the payment of refund contrary to the amended provisions of Section 11B(2) of the Act. The Court expressed the view that Section 11B(3) of the Act, as amended, would apply to all cases which were pending notwithstanding any order or decree or judgment of a court or Tribunal or the provisions of any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances of the present case more so because the judgment and order, of the High Court directing refund was pending final adjudication by this Court when the amended provision of Section 11B(3) of the Act came into force with effect from 20-9-1991. That apart, the argument on behalf of the respondent that in the present case 'refund has already been made' to the respondent in accordance with the directions of the High Court by virtue of the interim order of the Court dated 8-10-1982 is factually incorrect. It is based on misconstruction both of the order of the High Court as well as the interim order of this Court. After quashing the orders of the Collector, Central Excise (Appeals), holding the two refund applications as time barred, the High Court allowed the writ petition and issued a mandamus "directing the respondents to refund to the petitioners the sum of Rs. 23,68,686.85 + Rs. 26,21,356.16 or such other lesser sum as may be found on verification to be due". Thus, refund had to be made, even under the orders of the High Court dated April 12, 1982, only after 'verification of the refund due'. The order was, thus, not an order absolute in terms. Admittedly, the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of a statute but had in fact been paid under a mistake of law, the party has a right to recover it and there is a corresponding legal obligation on the part of the Government to refund the excess duty so collected because the collection in such cases would be without the Authority of Law. The payment and recovery of excess excise duty was thus on account of a mutual mistake. The Collector of Central Excise (Appeals) accepted this position and allowed three refund applications but rejected the two aplications as barred by limitation. The Department did not question the order of the Collector, Central Excise (Appeals), granting three refund applications and that order acquired finality. The High Court in the writ petition filed by the respondent against the rejection of two refund applications found that the respondent could not be non-suited on the plea of limitation since the excess excise duty had been paid on account of mistake of law and set aside the order of the Collector of Central Excise (Appeals) rejecting two refund applications and by a writ of mandamus directed the refund as claimed subject, however, to verification. In6. Salonah Tea Company Ltd. etc. v. Superintend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund for the period 1-9-1970 to 28-5-1971 and 1-6-1971 to 19-2-1972 was not proper as admittedly the respondent had approached the Assistant Collector Excise soon after coming to know of the judgment in Voltas case (supra) and the assessee was not guilty of any laches to claim refund." 27.The Supreme Court further considered the question as to on whom the burden to prove that the incidence of duty has been passed on to the buyer or borne by the assessee himself and the consequences to flow from such failure, in paragraphs 18 to 21 (at pages 15-17), is reflected is below : Under"18. the amended provisions of Section 11B, claim for refund has to be made by an assessee to the Assistant Collector Central Excise in the prescribed manner, supported by documentary and other evidence, to establish that the claiment had not passed on the burden of the excise duty to any other person and had borne it himself, but with a view to obviate delay, which would result by an order of remand aimed at providing an opportunity to the respondent to establish by any material or documentary evidence before the Assistant Collector Excise, that it had not passed on the incidence of duty to any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, since the price was an integrated or cum duty price. The respondent has not filed any evidence or material whatsoever to show that the burden of excess excise duty has been borne by them and not passed on to any other person in spite of ample opportunity given by this Court. Section19. 12B of the Act which was also introduced by the Amending Act 40 of 1991 lays down as follows :- "S.12B Presumption that the incidence of duty has been passed on to the buyer. — Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods." This Section, thus creates a rebuttable presumption that every person who has paid excise duty has passed on the burden of the same to the buyers of such goods. The presumption has to be rebutted by the manufacturer who has paid the duty. The burden of proof is on the person claiming the refund to establish that he has paid the duty but not passed on the duty to the buyer of such goods. Since, this Court granted sufficient opportunity to the respondent to furnish such documentary or other evidence as it may wish to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat any octroi was separately charged and collected by the Company. It may be mentioned that in the rejoinder filed by the appellant in the writ petition they have specifically denied that they "have recovered the amount paid by them by way of octroi duty from the dealers to whom they had sold the goods or that the dealers in turn have recovered the octroi duty from the customers." In view of this the question of unjust enrichment does not arise." TELCO cases (supra) is thus clearly distinguishable and has no application to the present case. 21. Thus, in view of the amended provision of Section 11B of the Act, since the respondent has failed to establish that it had not passed on the duty of the excess excise duty to any other person, it is not entitled to the refund of the amount claimed by it and we accordingly allow this appeal and set aside the order of the Division Bench of the Delhi High Court directing the refund of Rs. 23,68,686.85, + Rs. 26,21,356.16 while upholding the order of the High Court as regards the question of limitation. Further, in accordance, with the interim order of this Court dated 8-10-1982, we direct the respondent to refund to the appellants the sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oisture, ammonia gas, sulphur dioxide gas are escaping. After calcination for an hour, the crucibles are allowed to cool for approximately an hour. After removal of aluminia powder from those crucibles, they are again filled with double sulphate, which is subjected to calcination. Thus, a crucible is subjected to 5 to 6 charges in a duration of twelve hours. The life of the crucible is stated to be around 100 to 200 charges and thereafter, it will get cracked mainly due to thermal shock, mechanical impact, chemical reaction, manufacturing defect and human error. Once a crucible develops crack, it cannot be used further, since it will break into pieces, thereby getting destroyed and lose its utility without being capable of further use. With the help of Hydrogen and oxygen gases and alumina powder obtained during calcination, single crystals of aluminium are developed. These single crystals are called rough synthetic gem stones. 30.It is thus crystal clear that the imported silica crucibles are captively used for the manufacture of synthetic gem, and not consumed in the manufacture of synthetic gem, inasmuch as it did not become a part and parcel whether separable or not, and it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o as to understand in a better fashion, the Legislative intent expressed therein. It reads as : "the duty and interest, if any, paid on such duty paid by importer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person" (emphasis is ours) The provision, as above, if read, would connote simpliciter the idea of passing on the incidence of duty without prescribing restrictions of any kind whatever. To put more explicitly, what it connotes is that passing on the incidence of duty may take place directly or indirectly. It is not as if the Legislature is starving for language in the Legislative exercise undertaken in enacting such a provision. If the Legislative intent was to put any restrictions as respects the manner of passing on the incidence of duty, it was not impossible exercise, and they could have very well placed such restriction by insertion of expressions 'directly' or 'indirectly' at the appropriate places in the enactment of such a provision. The fact that the express inclusion of such words is absent by itself is indicative of the Legislative intent in not putting any clog or restriction, as respects the passing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finished product-dipped fabrics. The petitioner - SRF Limited did not, however, place or produce any tangible material to point out that as matter of fact, it did not at all pass on the incidence of excise duty paid on RF solution to the customers or buyers, during the relevant period by including the said duty in the price of finished product-dipped fabrics. 37.The failure of SRF Limited to produce or place necessary evidence either before the competent authority or before us would go to show that it has failed to rebut the presumption that it had not passed on the burden of duty of excise to any other person, as envisaged by Section 12B of CESA. Such being the case, we are rather constrained to hold that SRF Limited - petitioner is not entitled to claim refund of the duty of excise paid on RF solution during the relevant period, amounting to Rs. 5,41,498.67. 38.Admittedly, in the instant cases, refund claims were pending adjudication before some authority or the other, in the sense of not assuming any finality at the time when the Amendment Act came into force on 20-9-1991. Such being the case, the question as to whether in pari materia provisions adumberated in Section 11B of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, is applicable, in preventing the company from seeking redress under Article 226 of the Constitution of India. There is no difficulty at all for us to answer such a question in favour of the company, on the face of the law laid down by the Apex Court in the case of ITC Limited (supra), wherein Their Lordships, after referring to a catena of earlier decisions of the Apex Court said that it has been well-settled that where excess duty was not payable by the party under the provisions of a statute, but, in fact, had been paid under a mistake of law, the party has a right to recover it and there is a corresponding legal obligation on the part of the Government to refund the excess duty so collected, because the collection, in such cases, would be without the authority of law, inasmuch as the payment and recovery of excess excise duty was on account of mutual mistake and in such circumstances, the bar of limitation, as had been provided in Section 11B of CESA is not applicable to an assessee in claiming refund, when especially, there was no laches on his part, in knocking at the doors of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 42.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility, taking shelter thereunder, would get exposed, if a deeper scrutiny is made of the relevant statutory provisions, in the light of the fact-situation. 44.To recapitulate, the Company had been importing silica crucibles from 1976 onwards and had been paying duty, as demanded by the Department under a mistaken impression of law and such mistake of law came to light only on 3-1-1983, the date on which CEGAT held that silica crucibles imported are not liable to countervailing duty. The Company, if at all, could file an application for refund, only subsequent to 5-1-1983 before the Assistant Collector of Customs. Such an application, if filed, could not be expected to be entertained, as being filed beyond the statutory period of limitation of six months, even though there is no fault or laches on the part of the Company. There is no conferment of powers on the Assistant Collector of Customs to entertain the application made beyond the period of six months, except in a case, where the duty is paid 'under protest'. Further, the Assistant Collector, being a statutory authority, cannot act beyond the scope of the provisions of the Act and cannot enlarge the period of limitation. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to rebut the presumption created under Section 12B of CESA. 47.Further, it is to be pointed out here that the adjudication of the refund claim involves consideration and appreciation of evidence or disputed facts relatable to passing on or otherwise of the incidence of duty of excise paid to the customers or buyers and only when the duty of excise paid had not been passed on to the customers or buyers or borne by the petitioner, the refund sought for could be made, in case the petitioner puts forth satisfactory proof on such aspects or otherwise, it would be presumed that the duty of excise paid had been passed on to the customers or buyers, thereby rendering his claim for refund to face dismal failure. Normally, when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, this Court, in exercise of its discretion, may decline to interfere, until all the statutory remedies are exhausted, particularly when the decision on the relief sought depends upon the appreciation of evidence or disputed facts. 48.But, in the instant case, having entertained the writ, and gone into the merits of the case as it in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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