TaxTMI 
TaxTMI 
2008 (9) TMI 875
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....rt has issued notice for final disposal on 11-3-2008. Pursuant to the notice, Mr. Harin P. Raval, learned Assistant Solicitor General appeared for the respondents and filed affidavit-in-reply of Binod Kumar Gupta, Deputy Commissioner, Central Excise & Customs, Division-IV, Vadodara-I, on behalf of respondent Nos. 3 to 5. The case of the petitioner is that the petitioner was following the procedure under Rules 156A and 156B of the Central Excise Rules, 1944 for removal of its petroleum products from its refinery/warehouse to other warehouses. As per Rule 156A, consignees had to dispatch duly endorsed rewarehousing certificates/triplicate application to the petitioner/consignor who was then required to present the same within 90 days to the authority. Rule 156B provided that on failure to the present the same, the consignor had to pay duty on such rewarehoused goods and was entitled to refund of such duty on presentation of the certificate/triplicate application. It is also the case of the petitioner that on 1-3-1984, Notification No. 75/84-C.E. was introduced exempting, inter alia, condition that it was proved that the goods were cleared for the intended use and that where such use ....
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....ces showing that duty had not been recovered from buyers. A dispute was raised for the first time vide letter dated 4-3-1997 that the demand was not under Rule 156B and that refund could be granted only after the order dated 30-11-1995 was set aside in appeal. In response to this, the petitioner submitted that as per the order dated 30-11-1995, the cause of payment of duty had been non-production of rewarehousing certificates within 90 days and, therefore, on getting those certificates, the petitioner was entitled to a refund under Rule 156B. 6. Being aggrieved by the said order of the respondent No. 5, the petitioner filed an appeal before the Commissioner (Appeals) of Central Excise who vide his order dated 30-10-1998 remanded the matter by observing that as per Rule 156B, when duty was paid and proof of rewarehousing was produced, the consignor was entitled to refund and that factual details in this regard were to be verified by the adjudicating authority. Pursuant to the order of Commissioner (Appeals), the respondent No. 4 i.e. Deputy Commissioner of Central Excise & Customs, issued another show-cause notice on 16-5-2000 once again proposing rejection of the claim on the grou....
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....on of the triplicate application. The impugned order is passed without any application of mind and is arbitrary, unjust and illegal. The action of the respondents of treating the recovery as one under Rule 9(2) only on account of a reference to an incorrect provision in the order in original is clearly in order to deny the benefit of Rule 156B available to the petitioner and disallow the petitioner's legitimate claim to refund of duty and hence, the said action is unreasonable, unconstitutional and high handed. By order dated 30-10-1998, the respondent No. 2 had observed that as per Rule 156B, when duty had been paid and proof of rewarehousing was produced by the consignor, the consignor would be entitled to refund of the duty so paid on making an application to the proper officer and had remanded the case only for verification of the factual details in this regard. In view of this, the entire proceedings in remand starting from the order dated 10-7-2000 passed by the respondent No. 4 and culminating in the impugned order of the Tribunal, holding that there was no question of granting refund since the order dated 30-11-1995 had not been set aside, are without jurisdiction and beyon....
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....rted immediately by the consignee from the places of procurement to the applicant premises, that is, consignees premises. It was found that acknowledgement in respect of the procurement had to be obtained by the consignor and the consignor had to establish that the consignment was procured by the proper consignee who had license in the form L.4/Registration Certificate. It was also found that the consignor had to establish the procurement of the consignments to be cleared by the consignees at their factory premises and rest of the procedure as provided under Chapter X had to be followed by the consignee. On facts, it was found that this procedure was not followed and proof was not produced by the consignor before the proper officer to establish the procurement. It was found that the manufacturer/assessee, i.e. the petitioner had not stated anything about the facts of establishing procurement of the consignment in the hands of proper consignee and, therefore, the allegations levelled in the show-cause notices were found to be correct. It was found that the consignments of R.C.O. which were assessed at concessional rate of duty subject to condition for intended use to the said pr....
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....dated 30-10-1998, the Deputy Commissioner after issuance of notice again passed an order by the Commissioner (Appeals) on 15-2-2001 holding that there was no infirmity in the order passed by the adjudicating authority. 12. Mr. Raval has further submitted that even the order of the Commissioner (Appeals) was challenged before the CESTAT which was also dismissed on 7-11-2005. The CESTAT in its order held that duty was not paid under Rule 156B(1) of the Central Excise Rules and, therefore, refund cannot be claimed under Rule 156B(2). It was further held that duty was paid consequent to the order in original dated 30-11-1995 and the said order was not modified by any authority and, therefore, refund claim was not allowable. When the said order is challenged in the present petition, the relief claimed therein is obviously barred on the ground of efficacious alternative statutory remedy by way of tax appeal under Section 35G of Central Excise Act, 1944 available to the petitioner. When efficacious alternative remedy is available, writ petition under Articles 226 & 227 of the Constitution of India would not be maintainable. He has further submitted that the reliefs claimed in the petitio....
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.... duty was not paid under the said Rule and, therefore, held that refund could not be granted to the petitioner. He has further submitted that since the petitioner paid duty in accordance with the order dated 30-11-1995, which is still operative and since duty was not paid within 10 days of remand as required, it could not be accepted that duty was paid under Rule 156B(1) of the Rules. He has further submitted that since the observations/directions of remand case were taken into consideration and examined to the extent of benefit of Rule 156B or otherwise and since it was found that though the order in original dated 30-11-1995 passed by the Commissioner was in terms of Rule 9(2) read with Section 11-A, it has not been set aside by the Tribunal and hence, the entire proceedings in remand starting from the order dated 10-7-2000 passed by the respondent No. 4 and culminating in the impugned order of the Tribunal holding that there was no question of granting refund since the order dated 30-11-1995 had not been set aside, are not without jurisdiction nor it was beyond the scope of remand. He has, therefore, submitted that the petition filed by the petitioner deserves to be dismissed wi....
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....and appeal filed there against was also dismissed by CEGAT for want of necessary approval from Committee on Disputes. He further held that subsequent presentation of the warehousing certificates by the petitioner was nothing but presentation of an evidence against the order of the Commissioner confirming the demand under Rule 9(2) read with Section 11A of the Act and the same could not be considered by him when the impugned order in original confirming the demand under Rule 9(2) was still in force. He further held that the duty paid by the petitioner was not within 10 days of written demand from the proper officer, or not even within 10 days of confirmation of demands by the adjudicating authority, so the refund was not a refund of duty paid under Rule 156B(1) where only such duty [paid under Rule 156B (1)] was refundable under Rule 156B(2). He accordingly rejected the refund claim of the petitioner. 17. This order of the Deputy Commissioner is beyond the scope of remand. The remand order was passed by the Commissioner (Appeals) with a specific direction to verify the factual details with regard to the rewarehousing documents. He was not directed to re-examine the whole issue or e....
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....T. Coming to the last point raised by Mr. Raval that the refund claim was rightly rejected by all the three authorities as the duty was paid under Rule 9(2) of the Rules pursuant to the order dated 30-11-1995 and not under Rule 156B(1) of the Rules, we are of the view that there is no substance in this point and it deserves to be rejected. The bogey of payment of duty under Rule 9(2) is created by the department only with a view to deny the refund to the petitioner. The stand of the department that since the duty was not paid within 10 days from the written demand or from the confirmation of demand, it is not the duty paid under Rule 156B(1), is absolutely erroneous and unsustainable. Rule 156B deals with failure to present triplicate application. Sub-rule (1) says that if the consignor fails to present the triplicate application to the officer in charge of the warehouse of removal in the manner laid down in sub-rule (4) of 156A, and the duplicate application endorsed with the rewarehousing certificate has also not been received by such officer from the officer in charge of the warehouse of destination, the consignor shall upon a written demand made by the former officer, pay the d....