TaxTMI 
TaxTMI 
2016 (6) TMI 773
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....nd Sales Agreement with Oil and Natural Gas Corporation, (hereinafter referred to as "ONGC" or "the custodian") and Indian Oil Corporation Limited (hereinafter referred to as "IOCL" or "buyer"). Under the said agreement, the petitioner supplies crude oil to the custodian, ONGC. On custody transfer of the crude oil, ONGC provides a custody report indicating the quantity of the crude oil received from the petitioner. The ONGC, then, supplies the crude oil to the buyer/IOCL. 2. The petitioner, at the end of the month, after receiving the crude receipt from ONGC, raises a tax invoice on IOCL containing the details of the quantity of crude oil supplied by ONGC and also charges Gujarat Value Added Tax (hereinafter referred to as "the GVAT") on the value of crude oil indicated in such tax invoices. After supplying crude oil to ONGC, the petitioner has paid Petroleum/Crude Oil Cess in terms of the provisions of section 15 of the OID Act for the period July, 2004 to April 30, 2014. The Crude Oil Cess is levied by the Ministry of Petroleum and Natural Gas and collected by the Department of Revenue, Ministry of Finance. It is the case of the petitioner that it paid Primary Education Cess (he....
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....enrichment in any of the communications. However, a certificate from IOCL had been submitted to the effect that IOCL does not pay Education Cess and Secondary and Higher Secondary Education Cess to the petitioner. It is the case of the petitioner that without considering the submissions advanced on behalf of the petitioner during the course of personal hearing and in the written submissions, by the impugned order dated 24.11.2014, the second respondent rejected the entire refund claim of Rs. 73,60,061/- under the provisions of section 11B of the Central Excise Act. Being aggrieved, the petitioner has filed the present petition challenging the order-in-original dated 24.11.2014 passed by the respondent No.2 and seeks a direction to the second respondent to forthwith sanction and grant the petitioner refund of Rs. 73,60,061/- along with interest at the rate of 18% per annum claimed vide application dated 21.07.2014. 3. Mr. Sujit Ghosh, learned advocate for the petitioner vehemently assailed the impugned order by submitting that the same is non est, void and ex-facie erroneous and bad in law. It was submitted that the second respondent has invoked the provisions of section 11B of the....
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....by the Central Government in the Ministry of Petroleum as established under the OID Act and the same cannot be held as levied by the Ministry of Finance. For the purpose of levying Education Cess on any kind of duty of excise, the latter should be leviable and recoverable by the Central Government in the Ministry of Finance. However, as Crude Oil Cess is not levied by the Ministry of Finance, Education Cess cannot be levied on the same. 3.2 In support of his submissions, the learned counsel placed reliance upon the decision of this court in the case of Commissioner v. Sahakari Khand Udyog Mandli Ltd., 2011 (263) ELT 34 (Guj.) wherein, the court in the context of the Sugar Cess Act, 1982 which contained similar provisions, held that the provisions of levy and collection of cess under the Central Excise Act and the rules thereunder have been incorporated and are to be read as part and parcel of the Cess Act. By adopting this legislative procedure, the legislature has used a well known legislative tool, but from the said exercise, it cannot be inferred or stated that the sugar cess imposed under the provisions of the Cess Act assume the characteristic of central excise duty so as to ....
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....ucceeds, the court can, in an appropriate case, direct refund of the amount which had been collected by the State authority having no jurisdiction. Reliance was also placed upon the decision of the Bombay High Court in the case of ITC Ltd. v. M. K. Chipkar and others, 1985 (19) ELT 373 (Bom.), wherein it has been held that the time limit laid down under rule 11 of the Central Excise Rules, 1944 (corresponding to section 11B of the Central Excise and Salt Act) shall not be applicable on an amount paid under mistake of law. The decision of this court in the case of Swastik Sanitarywares Ltd. v. Union of India, 2013 (296) ELT 321 (Guj.), was cited for the proposition that a deposit of amount paid under a mistake does not amount to deposit of excise duty and was a pure mistaken deposit of an amount with the Government which the revenue cannot retain or withhold. Such claim, therefore, would not fall within the ambit of section 11B of the Act. It was, accordingly, urged that since the provisions of section 11B of the CE Act are not applicable to the facts of the present case, the question of unjust enrichment, limitation etc. shall not apply for the purpose of claiming refund of the Edu....
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....is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or mistake or could, with reasonable diligence, have discovered it. It was submitted that thus, in case where the amount is paid under a mistake, the limitation is three years from the date of discovery of such mistake. It was submitted that the petitioner came to know about its mistake only after issuance of the CBEC circular dated 07.01.2014 and hence, the limitation would start to run only thereafter. Accordingly, the claim filed by the petitioner for refund on 17th July, 2014 was well within the prescribed period of limitation. 3.6 As regards the existence of an efficacious alternative statutory remedy it was submitted that since this is not a case of duty of excise, the petitioner need not go to the authority under the CE Act. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of State of Rajasthan v. Hindustan Copper Ltd., (1998) 9 SCC 708. It was, accordingly, urged that the impugned order being contrary to the statutory provisions and therefore, bad in la....
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....al under section 35 of the Central Excise Act. 4.1 Next, it was submitted that the petitioner was required to file a claim for refund under the provisions of section 11B of the CE Act along with documentary evidence as provided under section 12A thereof. The petitioner failed to prove that the incidence of duty paid by it had not been passed by it to any other person and hence, the petitioner having failed to prove that the incidence of duty had not been passed by it to any other person, the refund claim was squarely hit by unjust enrichment in view of the provisions of section 12B of the Central Excise Act. In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. v. CCE & Customs, (2005) 3 SCC 738, for the proposition that the doctrine of "unjust enrichment" is based on equity and has been accepted and applied in several cases. The court was of the opinion that irrespective of applicability of section 11B of the Central Excise Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. The court was of the view that section 11B of the Central Exci....
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....) ELT 261 (SC) wherein, the court observed that in the proceedings which emanated for levy of duty the order became final and without having that order set aside by a competent court there would be no question of grant of refund merely on the ground that in some other case a different view was taken, even if the payment is made under mistake of law. As long as the order which became final stands the authority cannot grant refund. If the application is under Section 27 of the Customs Act then the authority, being a creation of the statute, must act within the ambit of that provision and if the application is delayed he has no alternative but to reject it as barred by limitation. It was submitted that in the facts of the present case, the amount in question has been paid by the petitioner by way of self-assessment. Such assessment has become final and the petitioner has not challenged the same. It was submitted that no refund claim can be filed directly on the basis of CBEC circular dated 07.01.2014 before the pending assessment is finalized. Accordingly, for claiming any refund for the period from July 2004 to April 2014, on the basis of the CBEC circular dated 07.01.2014, the essen....
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....tents of the affidavit-in-reply filed on behalf of the respondents No.1 and 2 and the contents thereof were reiterated. It was, accordingly, urged that the petition being devoid of merits, deserves to be dismissed. 5. In rejoinder, Mr. Ghosh, learned counsel for the petitioner submitted that there is a clear distinction between a trade notice and a circular. It was submitted that the circular dated 07.01.2014 has been issued presumably under section 37B of the Central Excise Act in the year 2014 to remove doubts, whereas the trade notice has been issued by the Commissioners of different Zones. Under the circumstances, merely because the trade notice was issued at some point of time, does not mean that the petitioner was aware of the same. It was submitted that in the facts of the present case, the decision of the Supreme Court in the case of CIT v. Chhabil Dass Agarwal (supra) would not be applicable. As regards the decision of the Supreme Court in the case of Suganmal v. State of M. P. (supra), it was submitted that the facts of the present case are distinguishable from the facts of the said case and that the petitioner does not have any remedy except under Article 226 of the Con....
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....was submitted that in the present case, there was no assessment to begin and that mere payment of tax cannot be said to be an assessment. It was submitted that assessment is a machinery provision which derives relevance from substantive power, that is, levy. If the levy does not exist, there is no question of assessment. 5.3 On the question of unjust enrichment, it was submitted that the Chartered Accountant had on the basis of invoices, issued a certificate to the effect that the IOCL, the sole customer of the petitioner had not paid the Education Cess and Secondary and Higher Secondary Education Cess. Under the circumstances, there was no question of any unjust enrichment in the facts of the present case. 5.4 In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Competent Authority v. Barangore Jute Factory, (2005) 13 SCC 477. Reliance was also placed upon the decision of the Delhi High Court in the case of Hind Agro Industries Limited v. Commissioner of Customs, 2008 (221) ELT 336 (Del.), for the proposition that the custom authorities were bound to refund the cess erroneously paid under a mistake of law. The c....
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....fund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. 5.6 Reliance was also placed upon the decision of this court in the case of Gujarat Insecticides Ltd. v. Union of India, 2005 (183) ELT 9 (Guj), wherein the court observed that the amount had been retained by the respondent authorities without any justifiable reason, and ordered the same to be refunded to the petitioner immediately with interest @ 8% p.a. Reliance was also placed upon the decision of the Supreme Court in the case of State of Rajasthan v. Hindustan Copper Ltd., (1998) 9 SCC 708, wherein an affidavit of the authorized representative of the respondent had been filed stating that there was no question of any unjust enrichment of the respondent as a result of the refund of the excise duty paid on rectified spirit because the respondent has not passed on the duty to any consumer of the final product, viz., copper, manufactured by the respondent. The court found no reason to doubt the correctness of the aforesaid statement contained in the said affidavit and held that no case was made out for interference with....
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....which are collected by the Department of Revenue, but levied under an Act which is administered by different Departments, such as, Sugar Cess levied under Sugar Cess Act, 1982, Tea Cess levied under the Tea Act, 1953, etc., clarified that a cess levied under an Act which is not administered by Ministry of Finance (Department of Revenue) but only collected by the Department of Revenue under the provisions of that Act cannot be treated as a duty which is both levied and collected by the Department of Revenue. It has been reiterated that the Education Cess and the Secondary and Higher Secondary Education Cess are not to be calculated on cesses which are levied under Acts administered by Department/Ministries other than Ministry of Finance (Department of Revenue) but are only collected by the Department of Revenue in terms of those Acts. 7.1 It is the case of the petitioner that in view of the above clarification, it realised that it has been erroneously paying Education Cess without there being any such liability on its part. Having realised the mistake, the petitioner moved the application for refund of the amount paid under mistake. 7.2 Insofar as the case of the petitioner that i....
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....s purpose the provisions of that Act (CE Act) shall have effect as if that Act provided for levy of duties of excise on all items specified in the Schedule. Oil cess is nothing but excise duty on which Education Cess and Secondary and Higher Secondary Education Cess has been paid in terms of the provisions of Finance Acts 2004 and 2007 and all provisions of the Central Excise Act, 1944 and rules made thereunder, including refund of duty, are squarely applicable to the claimant. The adjudicating authority was further of the opinion that the clarification rendered in CBEC Circular is only in respect of Sugar Cess levied under the Sugar Cess Act, 1982 and Tea Cess levied under the Tea Act, 1953. The duty of excise levied under the provisions of OID Act on crude oil is also included within the meaning of "any other duty of excise" for the purposes of levy and collection of Education Cess and Secondary and Higher Secondary Education Cess under the provisions of Finance Acts, 2004 and 2007 respectively, and that the circular dated 07.01.2014 is not applicable to the facts of the present case. 8.3 Insofar as the finding that the Oil Cess is nothing but excise duty is concerned, it may be....
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...., 1944, or any other law for the time being in force. Once again, pointing out to the Scheme which is distinct from the provisions of the Central Excise Act read with the Tariff Act. When one reads sub-section (4) of Section 3 of the Cess Act, it becomes clear that for the purposes of levy and collection of the cess levied under sub-section (1) of Section 3 of the Cess Act, the procedural provisions relatable to levy and collection of the duty of excise, provisions relating to refund and exemption from duty, etc., are made applicable by invoking principle of incorporation. In other words, instead of bodily repeating the provisions of levy and collection of cess by this provision, the provisions under the Central Excise Act and the Rules thereunder have been incorporated and are to be read as part and parcel of the Cess Act. By adopting this legislative procedure, the legislature has used a well known legislative tool, but from the said exercise, it cannot be inferred or stated that the sugar cess imposed under the provisions of the Cess Act assume the characteristic of central excise duty so as to warrant calculation of education cess on the amount of cess so collected. 8. Sectio....
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....ced in India (including the continental shelf thereof) and- (a) removed to a refinery or factory; or (b) transferred by the person by whom such item is produced to another person, a duty of excise at such rate not exceeding the rate set forth in the corresponding entry in column 3 of the Schedule, as the Central Government may, by notification in the Official Gazette, specify: Provided that until the Central Government specifies by such notification the rate of the duty of excise in respect of crude oil (being an item specified in the Schedule) the duty of excise on crude oil under this sub-section shall be levied and collected at the rate of rupees sixty per tonne. (2) Every duty of excise leviable under sub-section (1) on any item shall be payable by the person by whom such item is produced, and in the case of crude oil, the duty of excise shall be collected on the quantity received in a refinery. (3) The duties of excise under sub-section (1) on the items specified in the Schedule shall be in addition to any cess or duty leviable on those items under any other law for the time being in force. (4) The provisions of the Central Excises and Salt Act, 1944 (1 of 1944), a....
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....erent Department, such as, Sugar Cess levied under the Sugar Cess Act, 1982, Tea Cess levied under the Tea Act, 1953 etc., relates only to the Sugar Cess and Tea Cess levied under the said Acts is concerned, in the opinion of this court, such finding is based upon a complete misreading of the said circular, inasmuch as, the adjudicating authority has completely ignored the fact that the words "Sugar Cess levied under the Sugar Cess Act, 1982, Tea Cess levied under Tea Act, 1953" are followed by the expression "etc.". Therefore, it is evident that the sugar cess and tea cess levied under the above Acts are merely illustrative in nature and what is meant by the circular is that the cesses which are collected by the Department of Revenue, but levied under an Act which is administered by different Department are not chargeable to Education Cess and Secondary and Higher Secondary Education Cess chargeable under the provisions of the Finance Acts, 2004 and 2007 respectively. 10. What is subject matter of challenge in the present petition, is the order passed by the adjudicating authority rejecting the application made by the petitioner seeking refund of the Education Cess Secondary and ....
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....ds), at the rate of one per cent calculated on the aggregate of all duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess chargeable under Section 93 of the Finance (No. 2) Act, 2004 (23 of 2004) and Secondary and Higher Education Cess on excisable goods) which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue), under the provisions of the Central Excise Act, 1944 (1 of 1944) or under any other law for the time being in force. (2) The Secondary and Higher Education Cess on excisable goods shall be in addition to any other duties of excise chargeable on such goods, under the Central Excise Act, 1944 (1 of 1944) or any other law for the time being in force and the Education Cess chargeable under Section 93 of the Finance (No. 2) Act, 2004 (23 of 2004). (3) The provisions of the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Secondary and Higher Education Cess on excisable goods as they apply i....
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....ver, the first condition with regard to levy of such duty of excise by the Central Government in the Ministry of Finance (Department of Revenue) is not satisfied inasmuch as the oil cess under the OID Act is levied by the Ministry of Petroleum and Natural Gas. In the aforesaid premises, the requirements of section 93 of the Finance Act, 2004 and section 138 of the Finance Act, 2007 are not satisfied in the present case, and consequently, the said provisions have no applicability to the facts of the present case. The petitioner, therefore, cannot be said to have been liable to pay Education Cess and Secondary and Higher Secondary Education Cess under the above provisions. 11. Since the machinery provisions of the Central Excise Act, 1944 have been incorporated in the OID Act and consequently the Education Cess and Secondary and Higher Secondary Education Cess had been paid to the Central Excise authorities, the petitioner was wholly justified in making the application for the refund to the second respondent. However, merely because the application is made to an authority under the Central Excise Act, the same would not lead to an inference that the application has been made under t....
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.... in the view it took. Where there is no question of undue enrichment, in respect of money collected or retained, refund, to which a citizen is entitled, must be made in a situation like this." "15. The learned counsel for the petitioners strongly relied on a Constitution Bench judgment of this Court in Mafatlal Industries Ltd. v. Union of India, 1997 (89) ELT 247 (SC). That was a case where refund was claimed on the ground that tax/duty had been collected by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 and the Rules and Regulations or the notifications issued under such enactments. In such cases claims for refund had to be preferred under, and in accordance with, the provisions of the respective enactments before the authorities specified and within the period of limitation prescribed therein. Hence it was held that petition under Article 226 of the Constitution could not be entertained having regard to the legislative intention evidenced by the provisions of the said Act and the writ petition, if any, would be considered and disposed of in the light of and in accordance with....
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....d. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, in the cases on hand where facts are not in dispute, collection of money as cess was itself without the authority of law; no case of undue enrichment was made out and the amount of cess was paid under protest; the writ petitions were filed within a reasonable time from the date of the declaration that the law under which tax/cess was collected was unconstitutional. There is no good reason to deny a relief of refund to the citizens in such cases on the principles of public interest and equity in the light of the cases cited above. However, it must not be understood that in all cases where collection of cess, levy or tax is held to be unconstitutional or invalid, the refund should necessarily follow. We wish to add that even in cases where collection of cess, levy or tax is held to be unconstitutional or invalid, refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case." [Emphasis supplied] 11.2 Reference may also be made to the decision of the Delhi High Court in Hind ....
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....ayable. There is no question of processing a claim of refund of such amount in terms of the Customs Act at all because the payment made mistakenly was not under that Act. In the circumstances, the period of limitation under Section 27 of the Act would not apply, as explained in Salonah Tea Company Limited. The applications for refund having been made well within the period of three years' after discovery of mistake by the Appellants, are not barred by limitation. Question (a) in para 7 above is accordingly answered in favour of the Appellants. Consequently, the need to answer question (b) does not arise." (Emphasis supplied) 11.3 In the light of the principles enunciated in the above decisions, having regard to the fact that in the facts of the present case, the refund is claimed on the ground that the amount was paid under a mistake of law and such claim being outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. Under the circumstances, the petitioner is justified in filing the present petition before this court against the order passed by the adjudicating authority rejecting its claim for refund of the amount paid under a mistak....
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....d not take the character of Education Cess and Secondary and Higher Secondary Education Cess but is simply an amount paid under a mistake of law. The provisions of section 11B of the Central Excise Act, 1944 would, therefore, not be applicable to an application seeking refund thereof. As held by the Supreme Court in U.P. Pollution Control Board v. Kanoria Industrial Ltd., (supra), a refund is claimed on the ground that the provisions of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of suit or by way of writ petition. In the present case, though the provision under which the amount was paid was not declared unconstitutional, it has been declared that the same applies only in cases where the duty is both, administered and collected, by the Department of Revenue, whereas in the present case, the Oil Cess, though collected by the Department of Revenue is administered by the Ministry of Petroleum and Natural Gas. The petitioner was therefore, wholly justified in making the application for refund under a mistake of law and not under section 11B of the Central Excise....
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....estion of legality in the earlier proceedings. It appears that the authorities proceeded under a mistake of law as to the nature of the claim. The appellant did not include the earlier demand in the writ petition because the suit to enforce the agreement limiting the liability was pending in appeal, but the appellant did attempt to raise the question in the appeal itself. However, the Court declined to entertain the additional ground as it was beyond the scope of the suit. Thereafter, the present writ petition was filed explaining all the circumstances. The High Court considered the delay as inordinate. In our view, the High Court failed to appreciate all material facts particularly the fact that the demand is illegal as already declared by it in the earlier case. 13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied i....
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...., if the petitioner is found to be sleeping over his right, or raises such a claim after unduly long period of time, it may be open for the Government to refuse to return the same and this court in exercise of discretionary writ jurisdiction, may also not compel the Government to do so. 16. In the present case, however, no such inordinate delay is pointed out. The petitioners have contended that the error was noticed by them some time in October, 2003 whereupon immediately on 1-11-2003, such refund claim was filed. 17. In a recent judgment in case of C.C. Patel & Associates Pvt. Ltd. (supra), this court had occasion to deal with somewhat similar situation where the petitioner had deposited service tax twice which was not being refunded by the Department. In that context, it was observed as under:- (12) We fail to see how the department can withhold such refund. We say so for several reasons. Firstly, we notice that under sub-section(3) of section 68, the time available to a service provider such as the petitioner for depositing with the Government service tax though not collected from the service recipient was 75 days from the end of the month when such service was provided. ....
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....either by cash or, at the option of the producer or dealer, be set off against the sum due from him in respect of any other period. Section 23 applies only in a case where money is paid under the Act. If there is no provision for realisation of the money under the Act, the act of payment was ultra vires, the money had not been paid under the Act. In that view of the matter Section 23 would not apply. 14. The High Court in the instant case after analysing the various decisions came to the conclusion that where a petitioner approached the High Court with the sole prayer of claiming refund of money by writ of mandamus, the same was normally not granted but where the refund was prayed as a consequential relief the same was normally entertained if there was no obstruction or if there was no triable issue like that of limitation. We agree that normally in a case where tax or money has been realised without the authority of law, the same should be refunded and in an application under Article 226 of the Constitution the court has power to direct the refund unless there have been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is....
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.... under Section 72 of the Indian Contract Act, 1872. The appellant contended that there was no violation of Article 301 of the Constitution, and even if there was such violation the tax came within the special provision under Article 304(a) of the Constitution and the High Court had no power to direct refund of tax already paid and in any event the High Court should not exercise its discretionary power of issuing a writ of mandamus directing this to be done since there was unreasonable delay in filing the petition. The High Court rejected all the contentions of the appellant and a writ of mandamus was issued as prayed for. It was held that tax was violative under Article 301 of the Constitution. But it was held that even though the tax contravened Article 301 of the Constitution, it was valid if it came within the saving provisions of Article 304 of the Constitution. Tobacco manufactured or produced in the appellant State, similar to the tobacco imported from outside had not been subjected to the tax and therefore the tax was not within the saving provisions of Article 304(a) of the Constitution. It was reiterated that the tax which had already been paid was so paid under a mistake ....
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.... applicant has discovered the mistake, or could, with reasonable diligence, have discovered it. Therefore, in case where money is paid under a mistake, the limitation would begin to run only when the applicant comes to know of such mistake or with reasonable diligence could have discovered such mistake. Adverting to the case at hand, the mistake is in the nature of a mistake of law. It appears that the legal position was not clear and hence, pursuant to representations made by the trade and field formations, the CBEC was required to issue the circular dated 07.01.2014 clarifying the issue. As noticed earlier, the petitioner had all along, right from July 2004 been paying Education Cess and subsequently, from the year 2007 was paying Secondary and Higher Secondary Education Cess, till April 2014. It was only when the Circular dated 07.01.2014 came to be issued by the CBEC, clarifying the issue, that the petitioner came to know about its mistake. Considering the nature of the mistake and the fact that the issue was not free from doubt till the above circular came to be issued by the CBEC, it also cannot be said that the petitioner could with reasonable diligence have discovered the m....
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....imitation." 15.1 The contention that the Education Cess and Secondary and Higher Secondary Education Cess having been paid by way of self assessment is not by way of a mistake, is thoroughly misconceived. The fact that despite there being no liability on the part of the petitioner to pay Education Cess and Secondary and Higher Secondary Education Cess, it has paid the same from July 2004 to April 2014, on the face of its shows that the same was by way of a mistake. As regards the contention that the self assessment having become final, it is not open for the petitioner to claim refund, the adjudicating authority, in the impugned order has held thus: "No refund claim can be filed directly on the basis of CBEC Circular dated 07.01.2014, before the pending assessment is finalised. Accordingly, for claiming any refund for the period from July, 2004 to April 2014, on the basis of CBEC circular dated 7.1.2014, the essential precondition is to first finalise the pending assessment, only then the question of any refund would arise. On verification of records, it is observed that the claimant has already self-assessed and paid the duty under rule 6 of the CER 2002 for the period July 200....
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....resh assessment was made. In a case where an assessee chooses to deposit by way of abundant caution advance tax or self-assessment tax which is in excess of his liability on the basis of return furnished or there is any arithmetical error or inaccuracy, it is open to him to claim refund of the excess tax paid in the course of assessment proceeding. He can certainly make such a claim also before the authority concerned calculating the refund. Similarly, if he has by mistake or inadvertence or on account of ignorance, included in his income any amount which is exempted from payment of income tax, or is not income within the contemplation of law, he may likewise bring this to the notice of the Assessing Authority, which if satisfied, may grant him relief and refund the tax paid in excess, if any. Such matters can be brought to the notice of the authority concerned in a case when refund is due and payable, and the authority concerned, on being satisfied, shall grant appropriate relief. In cases governed by Section 240 of the Act, an obligation is cast upon the Revenue to refund the amount to the assessee without his having to make any claim in that behalf. In appropriate cases therefor....
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....he respondents have no authority to retain the same. The decision of the Supreme Court in the case of Paros Electronics (P) Ltd. v. Union of India (supra) would have no applicability to the facts of the present case, inasmuch as, in that case the refund was not granted as the levy had become final being contested at all departmental levels. In the present case, the education cesses have been paid by the petitioner by way of self assessment and no assessment order has been passed thereon. 15.4 Reference may also be made at this stage to the decision of this court in the case of Alstom India Ltd. v. Union of India, 2014 (301) ELT 446 (Guj), on which reliance has been placed by the learned counsel for the petitioner, wherein it has been held as follows: "11. It is now well-settled law that a citizen, even after making payment of tax on demand by either misinterpretation of the statutory provision or under unconstitutional provision or under mistake of law, can subsequently challenge the inherent lack of jurisdiction on the part of the said State authority to demand tax, and if such a citizen succeeds, the Court can, in an appropriate case, direct refund of the amount which had been ....
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....n to which the refund is claimed, has not been passed by it to any other person and has held that the refund claim is therefore squarely hit by unjust enrichment in view of the provisions of section 12B of the Central Excise Act, 1944 as the claimant has passed on the incidence of duty to any other person. In this regard, it may be germane to refer to paragraph 19.19 of the impugned order wherein the adjudicating authority has recorded thus: "19.19 The claimant vide letter F. No.JTI/2014- 15/Excise/416 dated 20.11.2014 (received in the office on 21.11.2014)has also submitted a certificate dated 20.11.2014 signed by N. M. Bhalerao, Senior Finance Manager of M/s Indian Oil Corporation Ltd. (IOCL) to an effect that "M/s Indian Oil Corporation Limited (the buyer of crude oil from Dholka and Wavel Fields) do hereby confirm that they have not paid the amount of Primary education Cess and Secondary & Higher Education Cess on OID Cess to JTI on purchase of crude oil from them". Further, it is mentioned in the said certificate that "this certificate has been issued on the request of JTI for onward submission to the concerned Central Excise Authorities, in support of refund claim of Primary....
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....tant would normally suffice to discharge that burden, if the revenue authorities have any doubt with regard to the genuineness of the certificate or the correctness of it, it is for them to insist on further documents from the claimant to support the certificate issued by the Chartered Accountant or the Cost Accountant. In the instant case, in Ext. P10 order, while the 3rd respondent has chosen not to rely on the certificate of the Chartered Accountant produced by the petitioner, it is evident that the petitioner was not given any further opportunity to produce documents to substantiate the correctness of the said certificate, on the 3rd respondent entertaining a doubt regarding the correctness of the said certificate. I am of the view that if the 3rd respondent had any doubt regarding either the genuineness of the certificate or the correctness of the contents therein, it should have informed the petitioner of the same and given the petitioner an opportunity of producing additional documents to substantiate his claim for refund. That procedure not having been adopted by the 3rd respondent, I am of the view that Ext. P10 order passed by him cannot be legally sustained. Resultantly,....
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.... to issue invoice containing the details of quantity of crude oil transferred to IOCL by ONGC along with GVAT charged on the sales price of crude oil supplied. It is further the case of the petitioner that it does not charge any excise duty or crude oil cess to IOCL in the said invoices and that it is also not recovering the said crude oil cess from IOCL in any other form or through any other mode. It is also the case of the petitioner that the sales price of crude oil is derived independently based on price of Dubai crude oil price per barrel as published in Platt Oil Gram. The sales price does not have any nexus with the associated costs and statutory levies, taxes and duties. The petitioner has submitted copies of the Crude Offtake and Sales Agreement as well as the Production Sharing Contract. A perusal of the production sharing contract shows that the contract is by and between the Ministry of Petroleum and Natural Gas, Government of India and Larsen &Toubro Limited and the Petitioner Joshi Technologies International Inc. and not with the IOCL. Hence reference to clause 15 thereof by the adjudicating authority is misconceived. Insofar as IOCL is concerned there is a Crude Offt....
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....he final pricing basis and agree on the modifications." 17.2 On a close reading of the price clause, it is evident that the price of crude oil is based upon the formula provided under clause 13.2 which clearly does not include any tax, including Education Cess and Secondary and Higher Secondary Education Cess. The fact that no Crude Oil Cess is payable by the purchaser is further supported by the certificate of the Chartered Accountant based on the petitioner's invoices and also on the contractual clauses contained in the Crude Offtake and Sales Agreement as well as a copy of a letter dated 29th July, 2015 issued by Shri N.M. Bhalerao, Chief Finance Manager, IOCL, wherein the certificate dated 20th November, 2014, issued earlier by IOCL has been explained and it has been stated that the price paid to the petitioner by IOCL was solely dependent upon the daily mean values of high and low quotations of Brent under the heading viz. "Spot Crude Oil Assessment" in Platts Crude Oil Marketware and the same has no connection with Indian taxes. It is further stated therein that since, price paid for crude purchased by them from the petitioner is fixed solely on the basis of the internation....
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....he Crude Offtake and Sales Agreement and the certificate of the Chartered Accountant and the documents referred to hereinabove, more particularly, the certificate dated 29.07.2015 issued by IOCL, the above decision of the Supreme Court would be squarely applicable to the facts of the present case. Thus, from the certificate issued by the IOCL, it is evident that the IOCL which is the sole customer, has certified that it has not paid any Education Cess and/or Secondary and Higher Secondary Education Cess on the OID cess to the petitioner in view of the fact that the price paid for crude purchased by it from the petitioner is fixed solely on the basis of the international price of crude as traded in the international market and the burden of cess and royalty payable to Government of India is on the seller. In the impugned order, the adjudicating authority has brushed aside the certificate dated 20.11.2014 issued by the Senior Finance Manager of IOCL merely on the ground that such certificate was issued at the request of the claimant. As has rightly been stated in the above letter dated 29.07.2015, in the ordinary course, the petitioner would not be required to obtain such a certifica....
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....lief is not granted, it would suffer loss. The said decision, therefore, does not in any manner come to the aid of the respondent. In the aforesaid premises, there is no need to remit the matter to the adjudicating authority for examining the aspect of unjust enrichment. 18. On behalf of the respondent, a contention has been raised as regards the very maintainability of the petition on the ground that there is an efficacious alternative remedy available under section 35 of the Central Excise Act. Since the very existence of an alternative statutory remedy was in dispute, and connected issues were required to be decided for the purpose of deciding this issue, instead of deciding the question of maintainability at the very outset, the same is being decided at this stage. It has been vehemently contended on behalf of the respondents that this petition is not maintainable and that the petitioner should be relegated to avail of the remedy of appeal under section 35 of the Central Excise Act, 1944. In support of such contention, reliance was placed upon the decision of the Supreme Court in CIT v. Chhabil Dass Agarwal, (supra): "11. Before discussing the fact proposition, we would notic....
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....ve alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case, the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana, (1985) 3 SCC 267, this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility." 18.1 Reliance was also placed upon ....
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....not, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction." 18.2 On the other hand, it is the case of the petitioner that it has no alternative efficacious remedy but to approach this court since the present case pertains to levy of Education Cess and Secondary and Higher Secondary Education Cess on Oil Cess, which is far removed from the scope of the Central Excise Act which pertains solely to the levy and collection of excise duty. Hence, there is no question of preferring any appeal to the Commissioner (Appeals) under section 35 of the CE Act, since the said authority is a functionary acting under the said Act and has no jurisdiction to entertain cases pertaining to levy of Education Cess and Secondary and Higher Secondary Education Cess on Oil Cess. Moreover, the levy itself being unconstitutional, the said challenge is beyond the scope of the jurisdiction of the Commissioner (Appeals) to decide under section 35 of the CE Act. In support of such submission reliance has been placed on the decision of this court in Panoli Intermediate India Pvt. Ltd. v. Union of India, 2015 (326) ELT 532 (Guj), wherein it has been held thus: "(A) The petit....
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.... this case, there is no dispute with regard to the fact that no Service Tax is leviable for the service extended by the petitioner to the Muscat Bank SAOG. Thus, the writ petition is maintainable when the amount is arbitrarily withheld without any justification under law as the refund claimed by the petitioner is not relatable to Section 11B of the Central Excise Act. Similar view was also taken by the Karnataka High Court in K.V.R. Constructions v. Commissioner of Central Excise (Appeals) and Another [(2010) 28 VST 190 (Karn.) = 2010 (17) S.T.R. 6 (Kar.)] and by the Madras High Court in Natraj and Venkat Associates v. Asst. Commr. of S.T., Chennai-II [2010 (249) E.L.T. 337 (Mad.) = 2010 (17) S.T.R. 3 (Mad.)]." The above statement of law would also apply on all fours to the present case. 18.4 In the light of the above discussion, this court is of the view that the contention that the petition is not maintainable in view of there being an alternative statutory remedy of appeal available to the petitioner, does not merit acceptance. 19. Insofar as the claim of interest is concerned, the amount admittedly had been paid by the petitioner by way of a mistake. The position of law in ....
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....Furthermore, for the purpose of levy of Education Cess and Secondary and Higher Secondary Education Cess, two other conditions precedent, are required to be satisfied, viz., (i) that the duty of excise should be levied by the Central Government in the Ministry of Finance (Department of Revenue); and (ii) the duty of excise should be collected by the Central Government in the Ministry of Finance (Department of Revenue). In the present case, since the machinery provisions of the Central Excise Act, 1944 and the rules framed thereunder have been incorporated in the OID Act, the second condition precedent is satisfied, viz. that the cess is collected by the Central Government in the Ministry of Finance (Department of Revenue); however, the first condition with regard to levy of such duty of excise by the Central Government in the Ministry of Finance (Department of Revenue) is not satisfied inasmuch as the Oil Cess under the OID Act is levied by the Ministry of Petroleum and Natural Gas. In the aforesaid premises, the requirements of section 93 of the Finance Act, 2004 and section 138 of the Finance Act, 2007 are not satisfied in the present case, and consequently, the said provisions h....
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....eover, since the very retention of the Education Cess and Secondary and Higher Secondary Education Cess by the respondents is without authority of law, in the light of the decision of this court in Swastik Sanitarywares Ltd. v. Union of India (supra), the question of applying the limitation prescribed under section 11B of the CE Act would not arise. - Even in case where any amount is paid by way of self assessment, in the event any amount has been paid by mistake or through ignorance, it is always open to the assessee to bring it to the notice of the authority concerned and claim refund of the amount wrongly paid. The authority concerned is also duty bound to refund such amount as retention of such amount would be hit by Article 265 of the Constitution of India which mandates that no tax shall be levied or collected except by authority of law. Since the Education Cess and Secondary and Higher Secondary Education Cess collected from the petitioner is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the respondents have no authority to retain the same. - If the adjudicating authority was not satisfied with the Chartered Accountant's ....