1981 (2) TMI 90 - HC - Central Excise

Court orders refund per appellate decisions, rejects challenge to notice. Each party bears own costs.

The court partly allowed the petition, directing the respondents to refund amounts due to the petitioner as per appellate orders. The challenge to the ... Refund arising out of appellate order must be automatic without application - Price List Issues Involved:1. Inclusion of packing charges in the assessable value of glass sheets.2. Refund of excise duty as per appellate orders.3. Validity of the notice issued by the Central Government under Section 36(2) of the Central Excise and Salt Act.Issue-wise Detailed Analysis:1. Inclusion of Packing Charges in the Assessable Value of Glass Sheets:The petitioner, Triveni Sheet Glass Works Limited, manufactures glass sheets subject to excise duty under the Central Excises and Salt Act. The petitioner submitted various price lists for approval, which were modified by the proper officer to include packing charges in the assessable value. The petitioner contested these modifications and appealed to the Appellate Collector. The Appellate Collector ruled that extra packing charges for frame/case/crate packing and introductory discounts would not form part of the assessable value, while charges for handling and loading within the factory would. The petitioner complied with the modified price lists under protest and sought refunds based on the appellate decisions.2. Refund of Excise Duty as per Appellate Orders:The petitioner claimed refunds based on appellate orders which set aside the modifications made by the proper officer to the price lists. Despite repeated requests, the respondents did not refund the amounts. The petitioner sought a writ under Article 226 of the Constitution to command the respondents to refund the amounts. The court noted that the respondents did not deny the petitioner's entitlement to the refunds as per the appellate orders but justified the non-refund on the ground that the matter was under the Central Government's consideration. The court held that under Rule 11(3) of the Central Excise Rules, the proper officer has a statutory obligation to refund the amount due as a result of appellate or revisional orders, even without an application from the claimant. The court directed the respondents to refund the amounts due to the petitioner.3. Validity of the Notice Issued by the Central Government under Section 36(2):The petitioner challenged the validity of a notice issued by the Central Government under Section 36(2), which required the petitioner to show cause why the appellate order dated 14th October 1977 should not be revised. The petitioner argued that the notice was issued beyond the limitation period prescribed by the amendment to Section 36(2) by Act No. 25 of 1978. The court considered whether the amendments had retrospective effect and whether the case was governed by the second or third proviso to Section 36(2). The court concluded that the case was governed by the second proviso, allowing the Central Government to issue the notice within one year of the order. The court found that the notice was issued within the permissible period and was not without jurisdiction. The petitioner's request to quash the notice was rejected.Conclusion:The petition was partly allowed. The court directed the respondents to refund the amounts due to the petitioner as per the appellate orders. The petitioner's challenge to the validity of the notice issued by the Central Government was rejected. The parties were directed to bear their own costs.