2002 (2) TMI 136 - HC - Central Excise

Court sets aside adverse order, directs restoration of Modvat credit to petitioner with no interest on refund claim.

INDO-NIPPON CHEMICALS CO. LTD. Versus UNION OF INDIA

The court allowed the petition, setting aside the adverse order passed by the Assistant Commissioner of Central Excise. It directed the respondents to ... Refund - Cenvat/Modvat credit - Unjust enrichment - Interpretation of statutes - Res judicata - Legal position Issues Involved:1. Applicability of Section 11B of the Central Excise Act, 1944 for refund claims based on Modvat credit.2. Interpretation of Modvat credit as 'duty' under the Central Excise Act.3. Limitation period for filing refund claims under Section 11B.4. Equitable considerations and unjust enrichment in refund claims.Issue-wise Detailed Analysis:1. Applicability of Section 11B of the Central Excise Act, 1944 for refund claims based on Modvat credit:The petitioner-company, engaged in manufacturing plasticizers, availed Modvat credit on inputs for goods manufactured for home consumption and export. Due to a mutual mistake, the Modvat credit was reversed in February/March 1995, following the insistence of local Central Excise Officers who were unaware of Public Notice No. 6/1995 that allowed input stage credit under the QBAL Scheme. The petitioner filed a refund application under Section 11B, which was rejected on the grounds of limitation. The court had to determine whether Section 11B was applicable to refund claims based on Modvat credit.2. Interpretation of Modvat credit as 'duty' under the Central Excise Act:The petitioner argued that Modvat credit is not 'duty of excise' and thus, Section 11B should not apply. This argument was supported by the Supreme Court decision in Collector of Central Excise v. M/s. Raghuvar (India) Ltd., which held that Modvat credit is not 'duty' under Section 3 of the Act. However, the court found that Modvat credit, being a constituent of duty, is effectively a part of duty. The legislative change with the insertion of Section 2A in 2000, which included Modvat/Cenvat in the definition of 'duty', was not a reason to exclude Modvat credit from the definition of duty prior to this insertion. Therefore, the court rejected the argument that Modvat credit is not part of duty.3. Limitation period for filing refund claims under Section 11B:The Assistant Commissioner of Central Excise rejected the refund claim as it was filed beyond the six-month limitation period prescribed under Section 11B. The petitioner discovered the mutual mistake in November 1995 and filed the refund claim the same month. The court held that the limitation period should commence from the date of discovery of the mistake, applying the principle in Section 17 of the Limitation Act, which states that the period of limitation would not begin to run until the mistake is discovered. Since the mutual mistake was discovered in November 1995, the refund claim filed in the same month was within the limitation period.4. Equitable considerations and unjust enrichment in refund claims:The court considered whether there were any equitable considerations to deny the refund. It was undisputed that the Modvat credit was availed for inputs used in manufacturing goods for export, and thus, the burden of excise duty was not passed on to any other party. Therefore, there was no unjust enrichment by the petitioner. The court emphasized that just as the taxpayer should not be allowed to make unjust enrichment, the taxing authority should also not be permitted to make unjust gain. The Department's insistence on reversing the Modvat credit, despite the petitioner being entitled to it, constituted a mutual mistake. Thus, the court found no grounds to deny the refund based on equitable considerations.Conclusion:The court allowed the petition, setting aside the adverse order passed by the Assistant Commissioner of Central Excise. It directed the respondents to restore the Modvat credit of Rs. 41,18,212/- to the petitioner, either in cash or by adjustment towards future liability. The court made no order regarding interest on the refund claim and directed each party to bear their own costs.