TaxTMI 
TaxTMI 
2019 (9) TMI 529
X X X X Extracts X X X X
X X X X Extracts X X X X
....s Act and it functioned in the name and style of M/s.Ajni Interiors than M/s.Ajni Clean Rooms Pvt. Ltd. (now known as, M/s.Ajni Industries Pvt. Ltd.). On a tip of-intelligence received by the Headquarter Officers of Preventive Section of the Excise Department that the petitioner is indulging in evasion of Central Excise Duty, a team of Central Excise Officers of Headquarter Preventive Vadodara-II visited the premises on 20.9.2005 to ascertain the facts on the basis of authorization as per the Search warrant issued on 20.9.2005 by the Competent Authority. 2.2 The petitioner, during the course of investigation, deposited Rs. 15 Lacs through 6 different challans on different dates as a deposit and not any duty confirmed during the investigation. The said challans are at page No.75 to page No.81 to the petition. It has been deposited in Form No.TR-6 for depositing Central Excise Duty. Thereafter, a show cause notice dated 29.3.2006 was served upon the petitioner for the recovery of Central Excise Duty, with proposals, for demand of interest and imposition of penalties including penalties on the proprietor/partners. 2.3 It is further the case of the petitioner that prior to the adju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Act vide its Order-in-Original No.CD/82/Refund/11-12, dtd. 15-11-2011. 2.10 Being aggrieved by the rejection of refund claim, the petitioner preferred appeal No.SRP/542/VDRII/ 2013 before the Commissioner (Appeals), who by order dated 13.3.2013, rejected the appeal and confirmed the impugned Order-in-Original. 2.11 The petitioner further carried the same before CESTAT by filing Appeal No.E/11707/2013-SM. The Appellate Tribunal by an order dated 8.9.2017 dismissed the appeal upholding the orders passed by the lower Authorities. 3. This petition, under Article 226 of the Constitution of India, is filed against orders refusing the refund claimed by the petitioner on the ground that it is not filed in a prescribed form and filed beyond the period of limitation. 4. Heard Mr.Hasit Dave, learned advocate for the petitioner. According to him, the amount deposited by the petitioner vide 6 different challans amounting to Rs. 15 Lacs are pre-deposit and not the payment made towards excise duty. He has further contended that since the said amount was deposited, during the course of investigation, even prior to issuance of show cause notice, it has to be mandatorily returned when the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ection 35F of the Act and therefore, the claim made by the petitioner is not governed under the provisions of Section 11B of the Act. It is further contended that the judgment of the Supreme Court in the case of Mafatlal Industries Ltd. and others V/s. Union of India and others reported in (1997) 5 SCC 536 has no applicability to the facts of the present case since the same only pertains to interpretation of Section 11B and grant of refunds of Central Excise Duty and the Customs duty and not for any deposits as made in the facts of the present case. In support of his contentions, he relied on following decisions, by producing copies of such decisions along with short written submissions. (1) CC Raigadh V/s. Findacord Chemicals Pvt. Ltd. 2015 (319) ELT 616 (SC) (2) Union of India V/s. Suvidhe Ltd. 1997 (94) ELT A159 (SC) confirming the decision of Bombay High Court reported in 1996 (82) ELT 177 (Bom) (3) Union of India V/s. Nelco Ltd. reported in 2002 (144) ELT A-104 (SC) confirming the decision of Bombay High Court in 2002 (144) ELT 56 (Bom) (4) CCE V/s. Calcutta Iron & Steel Co. in 2018 (360) ELT 257 (SC) confirming the decision of Calcutta High Court. (5) CCE V/s. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t it is not a pre-deposit under Section 35F of the Act as the case was yet not adjudicated and there was no occasion to file appeal but it is payment made towards excise duty. 7. It is further contended by Mr.Desai, that the appellate Tribunal vide order dated 31.07.2007, set aside the order of adjudicating authority and therefore, the petitioner became entitled for the refund of the duty amount paid by it under the said challans within a period of one year from that date, it being relevant date. It is further contended that against the order of Tribunal dated 31.7.2007, there was no stay granted by any Court and therefore, for claiming refund, that would be a relevant date as defined under the Act. According to the respondents, the petitioner was supposed to submit the refund claim, that too, in a prescribed form by 30.7.2008. It is further contended that the petitioner had filed the letter dated 21.08.2010 seeking refund. Therefore, it was clearly time barred even if it is filed in a prescribed form. Therefore, it is contended that, not only, the said deposit was made without any protest but refund claim was filed beyond period of one year from the relevant date and therefore, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, (40 of 1991) such application shall be deemed to have been made under this subsection as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act: Provided further that the limitation o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction: (f) in any other case, the date of payment of duty. 13. Considering this Section itself, it is clear that a person claiming refund of any excise duty and interest, has to make an application for refund of such duty and interest to the authority enumerated therein, that too, before the expiry of one year from the relevant date, in such form and manner as may be prescribed. Therefore, a claim for refund has to be filed in the prescribed form within one year from the relevant date. Again, relevant date is also defined in the Explanation (B) (ec) considering the explanation with regard to relevant date, it is the date on which the Tribunal allowed the appeal preferred by the petitioner i.e. 7.8.2007. Thus, within one year from that date, the petitioner had to prefer claim for refund of Excise Duty in a prescribed form. 14. Considering the arguments advanced by learned advocates of the parties and scanning the material on record, it is clear that the case of the petitioner that payment towards Excise Duty is in the form of pre-deposit is misconceived. Considering the annexures annexed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 21.08.2010, show cause notice dated 10.11.2010 came to be issued by the Commissioner calling upon the petitioner to show cause as to why total claim of Rs. 15 Lacs should not be rejected under Section 11B of the Act as time barred, as also remaining amount of Rs. 3,32,076/- should not be rejected since it is not filed in the prescribed form in terms of Section 11B of the Act. Pursuant thereto, hearing took place and the Assistant Commissioner, Central Excise and Customs, City Division, Vadodara passed an Order-in-Original No.CD/82/Refund/11-12 dated 15.11.2011 rejecting the entire refund claim as it being time barred under Section 11B of the Act. It would be profitable to refer a communication dated 21.08.2010 by which, apart from it being not in the prescribed form, nowhere it is stated that Rs. 15 Lacs were deposited through Challan Form No.TR-6 under the threat or coercion from any of the Authority. Not only that, it has never been deposited under protest. Not only in the refund claim application it is not so stated, even in defence reply filed before the Assistant Commissioner pursuant to the show cause notice, no such plea is raised. On the contrary, it is stated that it was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rdance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. The said enactments including Section 11-B of the Central Excises and Salt Act and Section 27 of the Customs Act do constitute "law" within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are self contained enactments providing for levy, assessment, recovery and refund of duties imposed thereunder. Section 11-B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasize i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ribed form and within time. Over and above, it is not the case that it is paid under protest and on the contrary payment towards excise duty was voluntary and not under any protest. Even for payment made under protest also one has to apply in prescribed form under the enactment. Not only that it has to be supported by affidavit that it has not passed on the duty to another person. 21. Considering the principle laid down by the Supreme Court in Constitution Bench judgment, it is incumbent upon the person claiming refund of the duty / interest paid, has to claim it in accordance with provisions of the Act. Considering Section 11B of the Act, it is clear that for claiming refund under the Act, a person is to apply for the refund, in a prescribed form, of the duty / interest paid under protest, within a period of one year from the relevant date. Under Explanation below Section 11B of the Act, relevant date is also defined and therefore, it was incumbent upon the petitioner to file refund claim in prescribed form within a period of one year from 7.8.2007 i.e. the order passed by the Tribunal in favour of the petitioner. In our view, the ratio propounded by the Constitution Bench of th....