TaxTMI 
TaxTMI 
2012 (10) TMI 1158
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....was issued, granting exemption to the goods specified in the first schedule to the Central Excise Tariff Act, 1985, other than goods specified in the Annexure appended to the notification and cleared from a unit located in Kutch district of Gujarat from so much of the duty of excise and the additional duty of excise leviable thereon under the Central Excise Act and other related Acts as is equivalent to the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilization of Cenvat credit under the Cenvat Credit Rules, 2001. Such exemption was, of course, conditional subject to several conditions provided in the notification itself. We are, however, not concerned with all the details of such conditions in the present petition. 3. One of the conditions was that such exemption would be available only to new industrial units, meaning, units which are set up on or after the date of publication of the notification in the Official Gazette but not later than 31st July, 2003. Such outer time limit was subsequently extended from time to time. Finally such extension was granted up to 31st December, 2005. It is not in dispute that all the petitioners a....
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....s were invalid. Justice S.R. Brahmbhatt, however, ruled that the notifications were valid and no declaration of quashing the notifications should be given. The matter was, thereupon, placed before the third learned Judge (Justice Jayant Patel), who concurred with the view of Justice D.A. Mehta and held that the notifications were invalid. The decision has since been reported in the case of Sal Steel Ltd. v. Union of India, reported in 2010 (260) E.L.T. 185 (Guj.). 9. Such decision has been carried by the Union of India before the Supreme Court. While admitting the appeal and granting leave, the Supreme Court in its order dated 13th January, 2012 provided for following interim formula :- "We have heard learned counsel for the parties on the question of stay of the impugned judgment. Having done so, we direct that operation of the impugned judgment shall remain stayed till further orders, subject to the petitioners' releasing to the respondents 50% of the amount due to them in terms of the impugned judgment on the respondents' furnishing solvent surety to the satisfaction of the jurisdictional Commissioner, within four weeks of their furnishing the said surety." 10.&ems....
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....667 1169695 17 7-11-2009 1621746 479167 1142579 18 7-1-2010 2645855 1190040 1455815 19 6-2-2010 1621035 571729 1049306 20 5-4-2010 970504 706053 264451 21 6-4-2010 317256 33862 283394 Special Civil Application No. 3587 of 2012 (Meena Agency Pvt. Ltd.) Sr. No. Date of Refund Application Amount of Refund involved Amount Sanctioned Balance Amount 1 14-11-2006 12960628 12959728 900 2 18-12-2006 1813005 1813005 0 3 18-1-2007 2989719 2989719 0 4 15-2-2007 3583152 3583152 0 5 6-3-2007 3364403 3364403 0 6 7-5-2007 6210373 6210373 0 7 9-5-2007 4830858 4830585 0 8 13-6-2007 5084164 5084164 0 9 9-7-2007 8099657 8099657 0 10 27-8-2007 4315119 4315119 0 11 7-9-2007 8321188 8321188 0 12 1-10-2007 19888466 19888466 0 13 17-3-2008 29170300 29113787 56513 14 14-11-2008 43583777 25377574 18206203 15 10-12-2008 16364815 8722194 7642621 16 26-2-2009 16898213 888....
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....other hand, learned counsel Mr. Y.N. Ravani for the Revenue submitted that the petitioners had never challenged the notifications when other industries had approached this Court. The petitioners' refund claims were processed on the basis of Notification Nos. 16/2008-C.E. and 33/2008-C.E., as it stood at the relevant time. The petitioners did not file any appeals against the part rejection of their refund claims. They now cannot approach this Court directly after long gap of time and revive their request for grant of the remaining amount of refund. 14. Having thus heard learned counsel for the parties, we find that the facts are more or less undisputed. The petitioners had made refund claims when the Notification Nos. 16/2008-C.E. and 33/2008-C.E. were in operation. Such refund claims were processed by the Revenue authorities. Refund, as available in terms of original Notification No. 39/2001-C.E. as amended subsequently by the abovenoted two Notification Nos. 16/2008-C.E. and 33/2008-C.E., was granted. Such process took place in the year 2007-08 and thereafter. Barring few, majority claims were made prior to the year 2010. The orders passed by the competent authorities, rej....
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....d claims are governed by the statutory provisions contained in the Central Excise Act, 1944. Section 11B of the Central Excise Act pertains to claim for refund of duty. Sub-section (1) of Section 11B enables a person claim refund of duty to file a claim before expiry of the year from the "relevant date". Other sub-sections of the said section pertain to how such refund application shall be considered. Further proviso to sub-section (2) statutorily introduces principle of unjust enrichment. The competent authorities, if had, for some reasons, disallowed the claims in part, the same would give rise to a right of appeal to the petitioners to challenge such an order. Such statutory appeals have to be filed within prescribed time limits. The petitioners had to establish their rights independently. They could not have waited for other industries to challenge the notifications and abandoned their claims of refund in the meantime and thereafter revived their prayers for refund on the basis of judgment rendered in case of other industries. 17. In the case of Mafatlal Industries & Ors. v. Union of India & Ors., reported in (1997) 5 SCC 536, the Constitution Bench of the Supreme Court....
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....would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transgress them. (xi) Section 11B applied to all pending proceedings notwithstanding the fact that the duty may have been refunded to the petitioner/plaintiff pending the proceedings or under the orders of the Court//Tribunal/Authority or otherwise. It must be held that Union of India v. Jain Spinners and Union of India v. ITC have been correctly decided. It is, of course, obvious that where the refund proceedings have finally terminated in the sense that the appeal period has also expired before the commencement of the 1991 (Amendment) Act (19-9-1991), they cannot be reopened and/or governed by Section 11B(3) [as amended by the 1991 (Amendment) Act]. This, however, does not mean that the powers of the appellate authorities....