TaxTMI 
TaxTMI 
2017 (7) TMI 705
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....nruti. The said Notification was replaced by new project implementation regulations in Notification No. 306/86 dated 05.05.1986 as follows :- 133/85 -Customs, dated the 19th April 1985 In the said notification, the following Explanation shall be . inserted at the end, namely :- "Explanation :-- For the purpose of this notification, the expression power projects (including gas turbine power projects) shall mean such projects whose output or end product is power, but shall not include captive power plants set up by units engaged in activities other than power generation. The benefit of exemption was denied to the assessee company, since the assessee company proposed to set up captive power plant, to provide power to their own factory and so 30% basic customs duty was charged. Since the assessee company was in urgent need of power, the same was paid under protest. 3. On 12.01.1987, the assessee company preferred a refund application for Rs. 1,50,99,362.95. Since the department did not sanction their refund claim, the assessee company filed W.P. Nos. 4566 & 4567 of 1987, praying for a Writ of Declaration, declaring that the explanation added by Notification No.306/86 to No....
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....66 and 4567 of 1987, the said order became final and so the appeal filed by the department in W.A. No.1686/1998 was dismissed on 13.10.2008, with a direction to the respondents to consider and dispose of the representation of the assessee, for refund of the said amount within a period of two weeks from the date of receipt of a copy of the order or from the date of production of the said order. However, the department filed a Review Application in Rev. Appl. No.128/09, seeking review of its order dated 13.10.2008 on the ground that the assessee company is not entitled to the benefit of the exemption and also stating that the decision of the Hon'ble Supreme Court in the case of Indian Charge Chrome is in favour of the department, wherein the notification No.306 of 1986 has been upheld. The Review Application was also dismissed on 08.10.2009 observing that when the Administration is required to dispose of the representation of the assessee company, they could very well consider and dispose of the representation on merits and in accordance with law and instead of complying with the directions of the learned Single Judge and Division Bench concurrently, the Administration is gaining....
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....r Project through various shipments and claimed benefits of Notification No.133/85, granting exemption for goods under 84.66 imported into India for power projects. Subsequently, Notification No.306/86 dated 01.05.1986, was issued under Section 25(1) of Customs Act, 1962 excluding captive power plants engaged in activities other than power generations by adding explanation. Based on that notification, the appellant department denied the benefits claimed under the Notification No.133/85 to the respondent company. Since the refund application of the respondent company dated 12.01.1987, was not considered by the appellant department, the writ petitions in W.P. Nos. 4566 and 4567 of 1987 dated 02.03.1995, were filed by the respondent company challenging the explanation in Notification No.306/86 dated 01.05.1986 to Notification No.133/85 dated 19.04.1985. Since the writ petitions were allowed holding that the respondent company is entitled for exemption, a representation dated 14.09.1995 submitted for refund of Rs. 1,50,99,362.95 along with interest @ 16% per annum from 02.06.1995 till the date of payment. Subsequent to filing of appeals and petitions by both parties and based on the ju....
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....writ petitions were allowed and the latter part of the said Notification No.306/86 denying the benefits of Notification No.133/85 to captive power plants was quashed. Hence, the respondent company is entitled for refund of the excess duty paid. Eventhough, the appellant department had filed appeals before this Court and the Commissioner, the same were dismissed. The petition in W.P.No.5299 of 1998 was filed by the respondent company, seeking to give effect to the orders of this Court dated 02.03.1995 and to grant refund of the excess duty of 25% and by order dated 11.11.1998 this Court was pleased to pass an order directing the department to consider and dispose of the representation of the respondent company for refund, within a period of four weeks. Against the said order a Writ Appeal was filed in W.A. No.1686 of 1998 by the department and the same was also dismissed by this Court. The Review Application filed against the appeal was also dismissed on 08.10.2009. Since no Special Leave Petition was filed by the appellant department, the above said order has become final. Subsequently, the appellant department has also refunded the sum of Rs. 3,83,83,821/- to the respondent compan....
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....ns notwithstanding that no appeal was filed against W.A. Nos. 358 & 359 of 2000 dated 17.07.2000. 3) Whether the Tribunal was correct in not considering the appeal filed by the appellant challenging the direction to refund the amount on the ground of unjust enrichment more particularly in the light of the decision of the Apex Court in 2005 (181) ELT 328 (Shahakari Khand Udyog Mandal Ltd. vs. Commissioner). 4) Whether the Tribunal was justified in allowing the appeal without any discussion or reasoning objectively or subjectively with regards to the plea raised of non-discharge of burden of passing on the duty ( unjust enrichment) . 11. The point for consideration is whether the order dated 08.04.2011, passed by the Deputy Commissioner of Customs (Refunds), Chennai can be reversed by the Commissioner of Customs (Appeals), in the light of the decision rendered by the Hon'ble Supreme Court in Union of India vs. Indian Charge Chrome reported in 1999 (112) ELT 753 (SC). It is an admitted fact that the respondent company filed W.P. Nos. 4566 and 4567 of 1987 challenging the explanation added by Notification No.306/86 to Notification No.133/85 dated 19.04.1985 as unconstitutional, ....
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....ctivities other than power generation and which generated power for captive consumption. The words used in the Notification No. 133/85 were - "Power Projects (including gas turbine Power Projects)". A power plant is not the same thing as a power project. Chamber's 20th Century Dictionary defines Project as '"a proposal for undertaking: an undertaking." Plant is defined as "equipment, machinery, apparatus for an industrial activity." The distinction between the two terms is determinable by reference to mass, magnitude or extent of the two. 'Project' suggests something very much more extensive than a 'plant'. The learned senior counsel for the appellants is right in submitting that "power project" could not have meant "power plant" also and the scope for confusion or doubts, if any, was done away with by inserting a clarification. Thus the amendment notification was clarificatory merely. 16. In Kasinka Trading and Anr. v. Union of India and Anr.'s case (supra) this Court has held that the power of exemption under Section 25(1) of the Act has been granted to the Government by the Legislature with a view to enabling it to regulate, control and promote the i....
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....chment also is not justified. 28. Before parting the case, we would like to state that it was brought to our notice that appellant had returned the amount sanctioned as refund suo motu 'under protest' along with interest to the tune of Rs. 4,10,90,669/- under TR challan dated 2.9.2011 which stands deposited in the government exchequer. We are of the view that when there is no stay granted by any higher court on the refund order of adjudicating authority, depositing the refund already sanctioned in compliance of High Court's order is unwarranted. Keeping judicial discipline in view and this case having gone through a record of '7' Hon'ble High Court orders, we direct the revenue to return the amount due to the assessee without any further delay. Accordingly, we reject the Revenue appeal and allow the assessee's appeal with consequential benefit. 14. Therefore, the present appeal has been filed by the appellant department mainly on the ground that the Hon'ble Apex Court in Union of India vs. Indian Charge Chrome (1999 (112) ELT 753 S.C.) has upheld the notification issued in Notification No.133/85 and observed that it is only an amendment notificat....
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....he dispute in the cause or controversy between the State and each petitioner had no personal or individual element in it or anything personal on peculiar to each petitioner. The challenge to the constitutional validity of 1979 Act proceeded on identical grounds common to all petitioners. This challenge was accepted by the High Court by a common Judgment and it was this common Judgment that was the subject matter of appeal before this Court in Hansa Corporation's case. When the Supreme Court repelled the challenge and held the Act constitutionally valid , it in terms disposed of not the appeal in Hansa Corporation's case alone , but all petitions in which the High Court issued mandamus on the none existent ground that the 1979 Act was constitutionally invalid. It is , therefore , idle to contend that the law laid down by this Court in that Judgment would bind only the Hansa Corporation and not the other petitioners against whom the State of Karnataka had not filed any appeal. To do so is to ignore the binding nature of a Judgment of this Court under Article 141 of the Constitution. Article 141 reads as follows: "The law declared by the Supreme Court shall be binding on all....
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....t , the temporary shadow cast on it by the mandamus disappeared and the Act revived with its full figure , the constitutional invalidity held by the High Court having been removed by the Judgment of this Court. If the law so declared invalid is held constitutionally valid , effective and binding by the Supreme Court , the mandamus for bearing the authorities from enforcing its provisions would become ineffective and the authorities cannot be compelled to perform a negative duty. The declaration of the law is binding on everyone and it is therefore , futile to contend that the mandamus would survive in favour of those parties against whom appeals were not filed. 20. The fallacy of the argument can be better illustrated by looking at the submissions made from a slightly different angle. Assume for arguments sake that the mandamus in favour of the appellants survived notwithstanding the Judgment of this Court. How do they enforce the mandamus . The normal procedure is to move the Court in contempt when the parties against whom man damus is issued disrespect it. Supposing contempt petitions are filed and notices are issued to the State. The State's answer to the Court will be: "C....
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....stated supra. In the said order, it is clearly observed that, ' In view of the foregoing reasons and as also the issue has been finally settled by the Hon'ble High Court and the order has been accepted by the Department. The refund of Excess Duty so paid of Rs. 1,50,99,363/- along with the interest as calculated above, which works out to Rs. 2,32,84,458/- which is in total Rs. 3,83,83,821/- is admissible. Hence, I pass the following order.' Against the said order, the Commissioner of Customs (Appeals), Chennai has allowed the department appeal for the reasons that it is established beyond doubt that the respondent company are not eligible for the benefit under notification 133/85 read with notification 306/86 and for the subsequent refund. 20. The appeal filed by the respondent company before the Customs, Excise & Service Tax Appellate Tribunal was allowed, considering the orders passed by this Court in the Writ Petitions and Writ Appeals. The Review Application was dismissed, wherein it was held as below :- 3. Now, by virtue of this review application, the Administration is requiring us to pass orders on the representation submitted by the writ petitioner and to re....
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.... Corporation is bound to obey the writ of mandamus issued by the Calcutta High Court and to pay annual cash bonus for the year April 1, 1975 to March 31, 1976 to Class III and Class IV employees." In another decision of the Hon'ble Supreme Court in the case of RBF RIG Corporation vs. CC (Imports) Mumbai, reported in 2011 (264) ELT 486 (SC), in paragraphs 19, 20 and 21, it is held as follows :- 19. We hasten to add, if for any reason, the subordinate authority is of the view that the directions issued by the Court is contrary to statutory provision or well established principles of law, it can approach the same Court with necessary application/ petition for clarification or modification or approach the superior forum for appropriate reliefs. In the present case, as we have already noticed, the respondents have not questioned the order passed by the High Court, which order has reached finality. In such circumstances, we cannot permit the adjudicating authority to circumvent the order passed by the High Court. 20. Therefore, in our view, the refund claim of appellant has been erroneously rejected by the Deputy Commissioner of Customs vide its order dated 23.12.2014 ignoring th....