AI Drafter 
TaxTMI 
TaxTMI 
2025 (5) TMI 638
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....f closure of manufacturing operations. 2. The brief facts are that the appellant is a manufacturer of parts and accessories of motor vehicles falling under Chapter 87 of the Schedule to the Central Excise Tariff Act, 1985. In the course of its business, the appellant used to avail cenvat credit of the taxes/ duty paid on various inputs/capital goods and input services used for manufacturing of dutiable finished goods cleared on payment of applicable excise duty as per the Act. 3. With effect from 31.01.2015, the appellant stopped its manufacturing activities and all the manufactured goods have been cleared on payment of applicable central excise duty. On 01.05.2015 the appellant submitted an online application for surrender of central excise registration. At the time of closure of the business/ manufacturing operations the appellant had unutilized accumulated cenvat credit balance of Rs 18,74,68,939/- which was availed on inputs, input services and capital goods. 4. Consequent to such closure, since there is no output excise duty liability and there was no possibility to set off of the duty/taxes suffered on goods/services the appellant was of the view that it is el....
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....red on goods/services is not possible since there is no output excise duty liability, the appellant is eligible to claim refund of the unutilized accumulated cenvat credit on closure of manufacturing operations and thus had filed refund application under Section 11(B) of the Act. c) There is no express provision for denial of refund of accumulated cenvat credit on closure of manufacturing operations under the Act and rules made thereunder and the CCR d) It is specified under Section 11B that refund shall be granted to the assessee/applicant only under the cases covered under proviso to sub-section (2) e) The refund claim filed by the appellant is covered in clause (c) as well as clause (d) of proviso to Section 11B(2) as referred above f) That the said amount of credit has been shown as balances in their financial statement under the current assets head and accordingly their refund claim is free from unjust enrichment i.e. the Appellant itself has borne the burden and has not passed on to any other person and in this regard the appellant is submitting a copy of CA certificate evidencing the absence of unjust enrichment. 7. After due process of....
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....ria Ltd, 1999 (112) ELT 0353 (SC) for the proposition that credit validly taken is therefore indefeasible. vii. in the circumstance of closure of the factory the appellant is not in position to utilize the cenvat credit in absence of any output duty liability and therefore rejection of cash refund of accumulated cenvat credit will amount to denial of the benefit accrued to the appellant under law. viii. without prejudice, the refund claim may also be covered under clause (d) of proviso to section 11B(2) as the appellant has not passed on the burden of duty paid on the inputs, input services and capital goods to any other person/entity/customers. ix. the appellant is enclosing a CA certificate that shows that the burden is not passed on to any other person. x. cash refund of accumulated credit is not restricted only to final products cleared for export under Rule 5 of the CCR and the said Rule does not expressly prohibit refund of unutilized credit where there is no manufacture in the light of closure of factory. Reliance is placed on the decisions in Slovak India Trading Co Ltd v CCE, Bangalore, 2006 (205) ELT 956 (Tri-Bang) which was approved by....
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....11-TIOL-656-CESTSAT Del LB) and Phoenix Industries Pvt Ltd [2015 (330) ELT 303 Tri. LB) relied upon to reject the refund claim (page 69-70-para 36 and 40 of paper book OIO) and (page 101,102-Para 9 and 13 (1) of paper book-OIA). ii. The appellant relies on the following judicial precedents of the High Courts where it has been held that the refund would be eligible in the absence of any specific provisions restricting the refund charm on account of closure of business and submits that the same are binding in nature. a. Union of India Versus Slovak India Trading Co. Pvt. Ltd. [2006 (7) TMI 9 - KARNATAKA HIGH COURT] b. Union of India Vs. Slovak India Trading Co. Pvt. Ltd. [2007 (1) TMI 556 SC ORDER] c. The Commissioner, Goods and Service Tax Commissionerate Vs M/S Shree Krishna Paper Mills and Industries Ltd. And Ors. [2019 (12) TMI 1348 PUNJAB AND HARYANA HIGH COURT] d. M/s. Lav Kush Textiles Vs. The Commissioner, Central Excise, Jaipur (2017 (5) TMI 1021 RAJASTHAN HIGH COURT) e. M/s. Welcure Drugs and Pharmaceuticals Ltd. Vs. Commissioner of Central Excise, Jaipur (2018 (8) TMI 1169 RAJASTHAN HIGH COURT) iii) That the Ho....
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....-CESTAT-DEL) vii. Resultantly, that the rejection of refund by Lower Authorities by not following the decision of Slovak India Trading ought to be set aside and that the Appeal may be allowed with consequential relief. 10. Shri. Anoop Singh, Ld. Authorised Representative (AR), represented the department. While reiterating the findings of the Ld. appellate authority, he submitted that the appellate authority has rightly upheld the order of the adjudicating authority which is well reasoned and contended as under: i. The claim of the appellant under proviso to Section 11B(2) cannot sustain as the clause (c) under the proviso deals with refund related to refund of input credit earned by the manufacturer in accordance with the rules made or any notification issued under the Act and the appellant has not stated any such notification or rule in its refund claim ii. That the appellant has not filed the refund claim under Rule 5 of the CCR or followed conditions prescribed under Notfn. No.27/2012 -CE (NT) dated 18-06-2012 issued under this rule. iii. That it is not the case of the appellant that the accumulation of impugned credit is due to use of the ....
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.... the Hon'ble Bombay High Court. The Ld. AR submitted that for the said reason the decisions relied upon by the Appellant that the larger bench of the Tribunal is binding on this Tribunal would not apply in such circumstances. 11. In Rejoinder, the Ld. Counsel for the appellant submits that the Tribunal in the ATV Projects case had also considered the Bombay High Court decision in Gauri Plasticulture, but the third member has observed that the judgment of the Hon'ble Supreme Court in the case of Gangadhara Palo was not placed by the counsel from either side before the Hon'ble Bombay High Court, while deciding the appeal in the case of Gauri Plasticulture and therefore the ratio of the judgement of Hon'ble Apex Court supra was not considered by the Hon'ble High Court and therefore it cannot be conclusively said that the decision of the Hon'ble Karnataka High Court in the case of Slovak India Trading Co Pvt ltd lacks value as a precedent. It was also submitted by the Ld. Counsel that the Tribunal in its decision in Larsen & Toubro Ltd v CST, Delhi has held that wherever pursuant to a conflict of opinion in a decision by a Division Bench, the conflict is referred to a third mem....
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....€¢ PROVISIONS OF THE ACT I. "SECTION 11B. Claim for refund of duty and interest, if any, paid on such duty. - (1) Any person claiming refund of 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, such application shall be deemed to have been made under this sub-section as amended by the said Act....
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....d to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder 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 doub....
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....f issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, 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. II. SECTION 12B. Presumption that the incidence of duty has been passed on to the buyer. - Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. III. SECTION 12C. Consumer Welfare Fund. - (1) There shall be established by the Central Government a fund, to be called the Consumer Welfare Fund. (2) There shall be credited to the Fund, in such manner as may be prescribed, - (a) the amount of duty of excise referred to in sub-section (2) of section 11B or sub-section (2) of section 11C or sub-section (2) of section 11D;....
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....nent to note that the procedure for filing the refund claim in para 3 of the notification 27/2012 ibid, inter-alia stipulate that. - (a) The manufacturer or provider of output service, as the case may be, shall submit an application in Form A annexed to the notification, to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, in whose jurisdiction, - (i) the factory from which the final products are exported is situated. (ii) the registered premises of the provider of service from which output services are exported is situated. (b) The application in the Form A along with the documents specified therein and enclosures relating to the quarter for which refund is being claimed shall be filed by the claimant, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944). Para 3(g) of the notification 27/2012 ibid, further stipulates that at the time of sanctioning the refund claim the Assistant Commissioner or Deputy Commissioner shall satisfy himself or herself in respect of the correctness of the claim and the fact that goods cleared for export or se....
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.... shall be credited to the Fund. Thus, what flows from the aforesaid mandate of sub-section (2) of Section 11B is the determination of the eligibility to the refund to be made at first so that the concerned Assistant Commissioner/Deputy Commissioner is satisfied that the whole or any part of the duty of excise paid has satisfied the requirements of sub-section (1) of Section 11B and is refundable and upon such satisfaction, the amount so determined shall be credited to the Fund (Fund as specified in Section 12C of the CEA). Again, arrival at such satisfaction presupposes the determination of the said officer that procedure, safeguards, conditions and limitations that has been stipulated for the purposes of such refund have been complied, again a pointer to the fact that there must be a section, rule or notification that would lay down these parameters. However, the proviso to sub-section (2) of Section11B stipulates that the amount of duty of excise as determined by the Assistant Commissioner/Deputy Commissioner of Central Excise under sub-section (2) of Section 11B shall, instead of being credited to the fund, be paid to the applicant, if such amount is relatable to the situations ....
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....t, it is evident that clause (d) ibid can therefore only cover what is not a situation that would otherwise come under clause (c) ibid, which makes it amply clear that clause (d) ibid when it stipulates, inter-alia, "the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person" can then only be taken as referring to a situation where duty of excise has been paid on the goods manufactured by the manufacturer, which if he is claiming refund, ought to be that the incidence of which has not been passed on to any other person. Such is not the case here as the appellant is not claiming refund of duty on goods that have been manufactured by the appellant but the claim is for refund of accumulated cenvat credit on account of closure of appellant's factory. We are therefore of the view that the said claim cannot come under the ambit of clause (d) ibid, for the aforesaid reasons. 22. Our aforesaid view is bolstered by the locus classicus, namely, the Judgement of the 9 Judge Constitution Bench in the case of Mafatlal Industries Ltd v. Union of India, 1996 INSC 1514, wherein in the Judgement of Hon'ble J.S. Verma, S.C.Agrawal, B.P....
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....rovides for the establishment of the Consumer Welfare Fund (Fund) while Section 12D provides for rules being made to specify the manner in which the monies in the Fund shall be utilised. Rules have indeed been made under Section 12D, which provide for grants being made to Consumer's Welfare Organisations for being spent on welfare of consumers." 23. Thereafter, it has further been held in the aforementioned Judgement at para 96 as under: NATURE AND CHARACTER OF REFUND CLAIMS UNDER THE CENTRAL EXCISES AND SALT ACT AND THE CUSTOMS ACT: 96. It would be evident from the above discussions that the claims for refund under the said two enactments constitute an independent regimen. Every decision favourable to an assessee/manufacturer, whether on the question of classification, valuation or any other issue, does not automatically entail refund. Section 11B of the Central Excise and Salt Act and Section 27 of the Contract Act, whether before or after 1991 amendment-as interpreted by us herein-make every refund claim subject to proof of not passing on the burden of duty to others. Even if a suit is filed, the very same condition operates. Similarly, the High Court while ....
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....ovides for short title, extent, commencement, definitions, rules for taking cenvat credit, conditions for allowing cenvat credit, refund of cenvat credit, obligations of manufacturer of dutiable and exempted goods and provider of dutiable and exempted services, manner of distribution of credit by input service distributor, storage of inputs outside the factory of the manufacturer, documents and accounts, transfer of cenvat credit, transitional provisions, recovery of cenvat credit wrongly taken or erroneously refunded, confiscation and penalty. 27. We have reproduced the relevant portions of Rule 5 of CCR ibid which the appellant states as relevant with respect to its claim for refund. We have also reproduced the relevant portions of the notification No.27/2012-CE(NT) dated 18-06-2012 as amended. While Rule 5A and Rule 5B too provide for refund of cenvat credit in certain circumstances they have neither been relied upon nor are relevant for the issue under consideration. No doubt, Rule 5 of the CCR too governs the refund of cenvat credit in the circumstances more specifically stipulated therein and the notification No.27/2012-CE (NT) issued under Rule 5 of the CCR specifies the ....
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..... In that order, the Division Bench expressed its disagreement with a prior Division Bench view of the Honourable Bombay High Court taken in the case of Commissioner of Central Excise vs. Jain Vanguard Polybutylene Ltd. 1020 (256) ELT 523 (Bom.) :2010-TIOL-911-HC-MUM-CX. The Division Bench referred the following questions for opinion of this Larger Bench: "(a) Whether cash refund is permissible in terms of clause (c) to the proviso to section 11B(2) of the Central Excise Act, 1944 where an assessee is unable to utilize credit on inputs? (b) Whether by exercising power under Section 11B of the said Act of 1944, a refund of un-utilised amount of Cenvat Credit on account of the closure of manufacturing activities can be granted? (c) Whether what is observed in the order dated 25th January 2007 passed by the Apex Court in Petition for Special Leave to Appeal (Civil) No. CC 467 of 2007 (Union of India vs Slovak India Trading Company Pvt Ltd.) can be read as a declaration of law under Article 141 of the Constitution of India?" (emphasis supplied) 29. It would be of profit to note some of the relevant findings of the Honourable High Court of Bombay in Gauri P....
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.... judgment of the earlier Division Bench of this Court and that is based on the view taken by the High Court of Karnataka. The High Court of Karnataka has not discussed the scheme of Cenvat credit in details. The South Zonal Bench of the CESTAT in Slovak India (supra) considered the case of refund of unutilised Cenvat credit on account of closure of the factory of the said Slovak India. The Commissioner (Appeals) took the view that there is no provision in Rule 5 of the Cenvat Credit Rules to grant cash refund. After being approached, what the CESTAT observed is that there is a consistent view taken by the Tribunal that such claim is eligible and the assessee can seek refund when it goes out of the Modvat scheme (predecessor of Cenvat) or the unit is closed. This is the reasoning in the Tribunal's order and though the appeal of the Revenue before the High Court of Karnataka at Bengaluru raised several grounds and pleas, the High Court referred to the arguments and in para 4 of its order, reproduced Rule 5 of the Cenvat Credit Rules, 2002. In para 5, the reasoning of the High Court of Karnataka reads thus : "5. There is no express prohibition in terms of Rule 5. Even ot....
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.... "Delay condoned. We find no reason to interfere with the impugned order in exercise of our discretion under Article 136 of the Constitution. The Special Leave Petition is, accordingly, dismissed leaving the question of law open." 35. The Special Leave Petition was dismissed, but the question of law was expressly kept open. It is in these circumstances that we are not in agreement with Mr. Patil that the issue or the controversy before us stands concluded against the Revenue. The question of law was still open to be raised and equally examined by us...." (emphasis supplied) 30. After finding thus, the Hon'ble High Court went on to hold as under: "39. The referring order has already discussed in detail as to how the principle of merger cannot be invoked in this case. In the order passed in the case of Jain Vanguard (supra), the question of law was expressly kept open. Hence, the earlier view of the Tribunal does not merge with dismissal of the Special Leave Petition in the case of Slovak India (supra). Hence, this principle has also no application. 40. As a result of the above discussion, we answer the questions of law framed above as ....
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....eathem, 1901 AC 495 (HL), wherein it was observed that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are found. In other words, a case is only an authority for what it actually decides. 14. Reliance could also be placed on the dissenting judgment of A.P. Sen, J. in Dalbir Singh vs. State of Punjab, (1979) 3 SCC 745, wherein his Lordship observed that a decision on a question of sentence depending upon the facts and circumstances of a particular case, can never be regarded as a binding precedent, much less "law declared" within the meaning of Article 141 of the Constitution so as to bind all courts within the territory of India. According to the well-settled theory of precedents, every decision contains three basic ingredients: (i) findings of material facts, direct and inferential. An inferential finding of fact is the inference which the Judge draws from the direct or perceptible facts; (ii) s....
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....and Chemicals Ltd. (1991) 4 SCC 139. Article 141 of the Constitution states that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. All courts in India, therefore, are bound to follow the decisions of Supreme Court. This principle is an aspect of judicial discipline. (emphasis supplied) 17. If a decision is on the basis of reasons stated in the decision or judgment, only the ratio decidendi is binding. The ratio or the basis of reasons and principles underlying a decision is distinct from the ultimate relief granted or manner of disposal adopted in a given case. It is the ratio decidendi which forms a precedent and not the final order in the judgment, vide Sanjay Singh vs. Uttar Pradesh Public Service Commission, Allahabad; (2007) 3 SCC 720. Therefore, the decision applicable only to the facts of the case cannot be treated as a binding precedent. (emphasis supplied) 18. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to individuals as to the consequences of transactions forming part of d....
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.... deduced therefrom. (emphasis supplied) 22. Further, the precedential value of an order of the Supreme Court which is not preceded by a detailed judgment would be lacking inasmuch as an issue would not have been categorically dealt with. What is of essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made therein." 34. Article 141 of the Constitution of India states that: "141. Law declared by Supreme Court to be binding on all courts. - The law declared by the Supreme Court shall be binding on all courts within the territory of India." 35. Thus, from the aforesaid Apex Court Judgement it is pellucid that the legal principles guiding the decision of a case is the ratio decidendi and it is this ratio decidendi that is the binding precedent. A decision which is not express and is neither founded on any reason nor proceeds on a consideration of the issue cannot be deemed to be law declared, so as to have a binding effect as is contemplated under Article 141. An order made merely to dispose of the case cannot have the value or effect of a binding precedent. The obiter dictum of....
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.... when a particular point of law was not consciously determined" 28. In this context, it is also important to note that, as an institution, our Supreme Court performs the twin functions of decision-making and precedent-making. A substantial portion of our jurisdiction under Article 136 is reflective of regular appellate disposition of decision making. Every judgment or order made by this Court in disposing of these appeals is not intended to be a binding precedent under Article 141. Though the arrival of a dispute for this Court's consideration, either for decision-making or precedent-making is at the same tarmac, every judgment or order which departs from this Court lands at the doorstep of the High Courts and the subordinate courts as a binding precedent. We are aware of the difficulties that High Courts and the subordinate courts face in determining whether the judgment is in the process of decision-making or precedent-making, particularly when we have also declared that even an obiter of this Court must be treated as a binding precedent for the High Courts and the courts below. In the process of decision making, this Court takes care to indicate the instances where the ....
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....doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so." 38. This indicates that a binding precedent, which has remained untouched for a long period of time must remained settled law according to the doctrine of stare decisis. The only exception to the same is when there are extraordinary or special reasons to do so. The doctrine of stare decisis can be applied both vertically (where the lower court is bound to follow the decision of the higher court in the same geographical jurisdiction) and horizontally (where a court is bound to abide by its previous judgments). 39. The general principles of horizontal stare decisis, have been reiterated in the landmark decision of Central Board of Dawoodi Bohra Community and Ors. v. State of Maharashtra and Ors (2005) 2 SCC 673 where it was held that: "12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms: - (1) Th....
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....jority, and consequently the correct law)." (emphasis supplied) JUDICIAL DISCIPLINE 41. Judicial discipline is a broad, overarching term that has not been defined by the Supreme Court generally, but has come up for consideration in various contexts apart from adherence to binding precedents, horizontal and vertical stare decisis etc. In Tarak Singh v, Jyothi Basu (2005) 1 SCC 201, the Honourable Apex Court has stated that: "21. It must be grasped that judicial discipline - is self discipline. The responsibility is self responsibility. Judicial discipline is an inbuilt mechanism inherent in the system itself Because of the position that we occupied and the enormous power we wield, no other authority can impose a discipline on us. All the more reasons Judges exercise self discipline of high standards...." 42. Most recently, a constitutional bench of the Apex Court in In Re: Order of Punjab and Haryana High Court Dated 17.07.2024 and Ancillary Issues 2024 SCC OnLine SC 1906, after observing in paragraph 4 that Judicial discipline in the context of the hierarchical nature of the judicial system is intended to preserve the dignity of all institutions, whether at ....
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....2006 (201) E.L.T. 559 (Kar.) (Union of India v. Slovak India Trading Co. Pvt. Ltd.). While dismissing the SLP, the Supreme Court passed the following order: "Delay condoned. The Tribunal while allowing the appeal filed by the respondent assessee has relied upon the following decisions: 1. Eicher Tractors v. CCE, Hyderabad, 2002 (147) E.L.T. 457 (Tri.-Del.); 2. Shree Prakash Textiles (Guj.) Ltd. v. CCE, Ahmedabad, 2004 (169) E.L.T. 162 (Tri. - Mumbai); 3. CCE, Ahmedabad v. Babu Textile Industries, 2003 (158) E.L.T. 215 (Tri. - Mumbai); and 4. CCE, Ahmedabad v. Arcoy Industries, 2004 (170) E.L.T. 507 (Tri. - Mumbai). of the Tribunal in which it has been held that the assessee is entitled to refund of the amount deposited if the assessee has gone out of the Modvat Scheme or their unit is closed. Aggrieved against the order of the Tribunal, revenue filed C.E.A. No. 5/2006 in the High Court of Karnataka at Bangalore. The High Court by its impugned order has affirmed the order of the tribunal and dismissed C.E.A. No. 5/2006 filed by the revenue. Learned ASG appearing for the Union of India fairly concedes that ....
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.... Kaur case cited supra that a decision based on a concession cannot be considered a binding precedent. Therefore, given that this decision of the Honourable Supreme Court in Kulwant Kaur has not been doubted by any other bench of the Honourable Supreme Court of a co-ordinate strength or greater bench strength, it continues to holds the field. 49. At the cost of repetition, it can be seen that the Honourable Apex Court in the Slovak case has stated thus: "Learned ASG appearing for the Union of India fairly concedes that those decisions of the Tribunal, which were relied upon by the Tribunal, have not been appealed against. In view of the concession made by the learned ASG, this special leave petition is dismissed" 50. Therefore, given that the Honourable Supreme Court proceeded to dismiss the SLP solely based on the concession made by the ASG, it cannot be treated as binding precedent. Moreover, while not expressly stated, it can be seen that Slovak was never intended to be a binding precedent. Accordingly, at best it would be a decision-making precedent as categorised by the Apex Court in NBCC (India) Ltd. v. The State of West Bengal & Ors. 2025 INSC 54, sin....
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....Court passed the following order: "Delay condoned. We find no reason to interfere with the impugned order in exercise of our discretion under Article 136 of the Constitution. The Special Leave Petition is, accordingly, dismissed leaving the question of law open." (emphasis supplied) 53. The question arises, as to why the Honourable Apex Court, refrained from exercising its discretionary jurisdiction under Article 136 of the Constitution and chose to leave the question of law open. A constitutional bench of the Supreme Court in Dhakeswari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal AIR 1955 SC 65, discussed its powers under Article 136 where it stated that "12. As regards the first contention of the learned Solicitor-General, we are unable to accede to it. It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in article 136. The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has been exercised sparingly and with ....
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....aw open so as to be decided by lower Courts or itself if any future factual scenario should arise involving the same/similar question of law. III. THE SUPREME COURT IN KUNHAYAMMED V. STATE OF KERALA, 2001(129) ELT 11 (SC) HAS CLEARLY OUTLINED THE DOCTRINE OF MERGER, ARTICLE 141 AND JUDICIAL DISCIPLINE. ACCORDINGLY, THE QUESTION OF LAW REGARDING THE REFUND OF UNUTILIZED CENVAT CREDIT CANNOT BE HELD TO HAVE BEEN DECIDED CONCLUSIVELY AS THE LAW OF THE LAND UNDER ARTICLE 141 IN SLOVAK CASE. 57. The three judge bench of the Honourable Apex Court in its decision in Kunhayammed v State of Kerala, 2001 (129) ELT 11 (SC), has held as under: "27. A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared.....
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....eave petition is dismissed - there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits - in a case where the High Court's order had not merged with an order passed by this Court after grant of special leave - the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it." 59. The Apex Court has thereafter gone on to hold further as under: "40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being ....
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....stitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger. 41. Once a special leave petition has been granted, the doors for the exercise of appellate Jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be incl....
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.... the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implicati....
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....if the dismissal is on merits. If the order dismissing the SLP is a non-speaking order, the dismissal would remain a dismissal where no reasons are assigned and no law has been declared by the Supreme Court. If the merits have been gone into, the merits are of the SLP and not the appeal arising out of the SLP. The Apex Court emphasizes this aspect by stating that the petitioner has been turned away at the threshold and without having been allowed to enter in the appellate jurisdiction of the Supreme Court. Thus, the dismissal of an SLP by a non-speaking order will neither attract the doctrine of merger, nor can it be law declared under Article 141. 62. A speaking order dismissing the leave to appeal is on a slightly different footing. While it does not attract the doctrine of merger, however, the law declared or stated here shall attract Article 141 of the constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court to express any opinion in conflict with or in departure from the view taken by this Court. In a speaking order dismissing ....
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.... 141. If the Supreme Court has decided on Y question of fact, then to the extent of Y question of fact, the Supreme Court order is binding on the parties in any subsequent proceedings as well as any other existing proceedings between the parties at the High Court or any other lower adjudicatory forum. But the Supreme Court has not adjudicated on Z question of fact. Accordingly, while the Apex Court order on X question of law and Y question of fact would be binding on the parties and the High Court and lower authorities. However, since Z question of fact has not been answered by the Apex court, the High Court's decision on Z question of fact would still binding on the parties since according to Kunhayammed, there would be no merger. Accordingly, the Apex Court's order would not be the only order binding as res-judicata between the parties. The SC order would be res judicata to the extent of X point of law and Y point of fact. But the High Court's decision on Z fact would also be binding on the parties in so far as the matter carried in SLP upto the Apex Court and operate as res judicata in subsequent inter-se proceedings of the parties with reference to such Z fact. 65. Agai....
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....r the very basis of the said fact, is precisely the concession by the Ld. ASG. Thus, in the Apex Court order of dismissal of SLP in Slovak case, there is no specific finding on a particular question of law or a question of fact that was an issue in the appeal, merely a narration of the fact that the Ld. ASG has conceded that the earlier decisions of the Tribunal had not been appealed against. At best, the decision of Slovak can be stretched to have rendered a finding of fact that the Ld. ASG has conceded that the decisions of the Tribunal had not been appealed against. That is to say, subsequent to the Apex Court decision in Slovak, it does not lie in the teeth of any other lower judicial forum to conclude that the Ld. ASG did not concede that the decisions of the Tribunal had not been appealed against, given the finding on fact that the Ld. ASG has made such a concession. The factum of such concession, cannot in any way be taken to be the Apex Court laying down any law explicitly or impliedly as there is no reasons assigned in its adjudication in Slovak on a point of law expressly or impliedly that was involved in the issues in appeal. Therefore, neither was the doctrine of merger....
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....(2023 (9) TMI 802 CESTAT MUMBAI): (2023) 10 Centax 191 (Tri.-Bom), post the decision of the full bench of the Bombay High Court in M/s. Gauri Plasticulture Pvt Ltd v. The Commissioner of Central Excise, Indore, 2019-TIOL-1248-HC-MUM-CX-LB : 2019 ((30) GSTL 224 (Bom), (Gauri Plasticulture 2), has chosen to strike a different path, it leads us to examine the concept of per-incuriam. 71. While there is a catena of Supreme Court decisions on the concept of per incuriam, the law has been succinctly summarised by a constitutional bench of the SC in M/s Bajaj Alliance General Insurance Co. Ltd v. Rambha Devi and Ors, 2024 INSC 840, in the following paragraphs: "98. The term per incuriam is a Latin term which means 'by inadvertence' or 'lack of care'. English Courts have developed this principle in relaxation of the rule of stare decisis. In Halsbury's Laws of England (Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578), the concept of per incuriam was explained as under: "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a cou....
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....at while Article 141 states that the Supreme Court's decisions are "binding on all courts within the territory of India," this does not extend to binding the Supreme Court itself, which remains free to reconsider its judgments in appropriate cases. 101. In Mamleshwar Prasad v. Kanhaiya Lal ([1975] 3 SCR 834: (1975) 2 SCC 232), reflecting on the principle of per incuriam, this Court speaking through Krishna Iyer J. held thus: "7. Certainty of the law, consistency of rulings and comity of courts - all flowering from the same principle - converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam." [emphasis supplied] 102. In A.R. Antulay v. R.S. Nayak ([1988] Supp. 1 SCR 1: (1988) ....
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....not be said to "declare the law" on those subjects if the relevant provisions were not really present to its mind. But in this case Sections 25-G and 25-H were not directly attracted and even if they could be said to have been attracted in laying down the major premise, they were to be interpreted consistently with the subject or context. The problem of judgment per incuriam when actually arises, should present no difficulty as this Court can lay down the law afresh, if two or more of its earlier judgments cannot stand together." [emphasis supplied] 107. Subsequently, in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., [2001] 3 SCR 479: (2001) 6 SCC 356, this Court observed: "A prior decision of the Supreme Court on identical facts and law binds the Court on the same points of law in a later case. In exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment 'per inc....
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....nciple of per incuriam may apply." (emphasis supplied) 72. We observe that the decision in M/s. ATV Projects India Ltd. Vs Commissioner of Central Excise & Service Tax, Raigad (2023 (9) TMI 802 CESTAT MUMBAI): (2023) 10 Centax 191 (Tri.-Bom), post the decision of the full bench of the Bombay High Court in M/s. Gauri Plasticulture Pvt Ltd v. The Commissioner of Central Excise, Indore, 2019-TIOL-1248-HC-MUM-CX-LB : 2019 ((30) GSTL 224 (Bom), (Gauri Plasticulture 2), though cognizant of the same, has nonetheless chosen not to follow the said decision, on the ground, inter-alia, that the judgment of Hon'ble Supreme Court in Gangadhara Palo Vs. Revenue Divisional Officer [2012 (25) STR 273 (SC)], wherein the decision of Kunhayammed and Others Vs. State of Kerala was further referred and clarified, was not brought to the knowledge of the Hon'ble Bombay High Court. To conclude that the Tribunal could differ with the jurisdictional High Court, reliance was placed on the decision of the Larger Bench of the Tribunal in Mira Silk Mills Vs. Commissioner of Central Excise Mumbai, [2003 (153) ELT 686 (Tri.-LB)] and para 70 of the decision of the Tribunal in Atma Steels Pvt Ltd v CCE, ....
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.... HMM Ltd. 1993 (67) E.L.T. 436 (Tribunal), held as under: "4. In such circumstances the reliance placed upon the Gujarat High Court judgment by the Department is well founded as it is a judicial pronouncement construing the same exemption notification with which we are concerned with in the present matter before us. It is not possible to accept the argument that since the Gujarat High Court judgment has not taken note of the Andhra Pradesh High Court decision and since the Gujarat High Court had gone into the intendment behind the exemption notification which is not permissible, and for these reasons the Tribunal could take a different view. Apart from the aspect of propriety of such an exercise by the Tribunal, because the concept of per incuriam is not applicable in such situation as between statutory Tribunal and a High Court, it is also relevant to note that there are decisions of the Supreme Court as in the case of The Tata Oil Mills Co. Ltd. v. Collector of Central Excise, reported in 1989 (43) E.L.T. 183 that both the objects and the language of the exemption notification have to be considered. The Gujarat High Court had clearly indicated while construing the N....
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....he Apex Court in the case of M/s. East India Commercial Co. Ltd. v. Collector of Customs, Calcutta reported in 1983 (13) E.L.T. 1342 (S.C.) was brought to the notice of the Larger Bench, but, was not adverted to sufficiently in the course of discussion. In the East India Commercial Co. case, one of the questions for consideration was whether the interpretation given by the Calcutta High Court to Section 167 of the Sea Customs Act, 1878 would be binding on authorities functioning within the jurisdiction of the High Court and the Supreme Court held that "it is implicit in the power of supervision conferred on a superior Tribunal that all the Tribunals subject to its supervision should conform to the law laid down by it. ........We, therefore, hold that the law declared by the highest Court in the State is binding on authorities or Tribunals under its superintendence.........". This decision has been followed by the Bombay High Court in CIT v. Godavaridevi Saraf reported in 1978 (2) E.L.T. (J 624). 10.1 In the case of U.P. Laminations v. Collector of Central Excise, Kanpur reported in 1988 (35) E.L.T. 398 (T), the Tribunal has followed the Supreme Court judgment in the case o....
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....cisions of the High Courts of Andhra Pradesh and Bombay in regard to reckoning of relevant date in cases where refund claims are filed invoking Notifications granting exemption based upon total value/quantity of clearances during a financial year have to be implemented by the authorities within their jurisdiction with reference to assessees within such jurisdiction. The respondents/assessees in the two appeals viz. M/s. Kashmir Conductor and M/s. Laldee (P) Ltd. are not situated in the jurisdiction of either of the above two High Courts and, therefore, will be bound by this Larger Bench order." 77. We see that in 2016, A three member bench of the South Zonal Bench of the CESTAT at Bangalore in the case of J.K. Tyre Industries Ltd. v. Asst. Commr. Of C. Ex. Mysore 2016 (340) E.L.T. 193 (Tri. - LB) looked into the issue of whether a jurisdictional tribunal must adhere to the order of the jurisdictional HC. It first relied on the aforementioned paragraphs in Kashmir Conductors and then stated the following: "17. Learned Departmental Representative Shri Ajay Saxena, has brought to our notice that the Hon'ble High Court of Chhattisgarh in Commissioner of Central Excise v. Sh....
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....ders the law propounded by the superior Court as not commending its acceptance. The observations of the Single Member Bench in Dr. Reddy's Laboratories Ltd. (supra) and of the Division Bench in Bharat Heavy Electricals Ltd. (supra), that the decision of the Hon'ble Karnataka High Court in Bill Forge Pvt. Ltd. is per incuriam, do not represent the correct and authorized application of the per incuriam principle. These decisions are accordingly overruled, to that extent. 20. The decision of the Larger Bench in Kashmir Conductors (supra) has been referred to and approved by the Hon'ble Supreme Court in Collector of Central Excise v. Rallis India Ltd. - 2002 (142) E.L.T. 19 (S.C.). The decision of the Hon'ble Karnataka High Court in Bill Forge Pvt. Ltd. being the decision of the jurisdictional High Court and in the context of the fact that the entire cause of action, the transactions in issue, the territory within which the appellant-assessee conducts its business and has its registered office and whereat proceedings were initiated and culminated, constitutes the operative law, for the parties to this appeal. Though the Hon'ble High Courts of Madras, Bombay and Chhattisgarh ar....
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....aw declared by the highest court in the State is binding on authorities or tribunals under its superintendence and they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction." 79. In this regard, the decision of the Honourable High Court of Bombay in Ceat Ltd v CCE, Nashik, 2015 (317) ELT 192 (Bom) also bears relevance. Relevant portions are as under: "34. Before parting, we would reproduce the following conclusion in the impugned order of the Tribunal. The attention of the Tribunal was invited to the order passed by it in the case of Ispat Industries Ltd. and Tata Motors Ltd. and further the order of this Court upholding the same. Yet, the Tribunal observes as under :- "We also note that the judgments of this Tribunal in the case of Ispat Industries Ltd. and Tata Motors Ltd. which were upheld by Hon'ble Bombay High Court are per incuriam as the details of various Rules as also the judgment of th....
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.... of Appeal found themselves able to disregard the decision of this House in Rookes v. Barnard by applying to it the label per incuriam. That label is relevant only to the right of an appellate Court to decline to follow one of its own previous decisions, not to its right to disregard a decision of a higher appellate Court or to the right of a judge of the High Court to disregard a decision of the Court of Appeal." 36. We would expect the Tribunal to be more careful and guarded hereafter. We say nothing more." 80. It is also seen that the Honourable Apex Court in South Central Railway Employees CO-OP Credit Society Employees Union v. B. Yashodabai and others, [2014] 12.S.C.R 370, has held in para 16 & 17 as under: "16. We are of the view that it was not open to the High Court to hold that the judgment delivered by this Court in C.A. No.4343 of 1988 was per incuriam. 17. If the view taken by the High Court is accepted, in our opinion, there would be total chaos in this country because in that case there would be no finality to any order passed by this Court. When a higher court has rendered a particular decision, the said decision must be followed b....
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.... disputed interpretation or proposition of law, the Tribunal is bound to follow that order since it is not at liberty to disregard the solitary High Court decision. 84. We are not enthused by the decision of the majority in M/s. ATV Projects India Ltd. Vs Commissioner of Central Excise & Service Tax, Raigad (2023 (9) TMI 802 CESTAT MUMBAI): (2023) 10 Centax 191 (Tri.-Bom), as to our mind, the following binding precedents and factors have escaped the attention of the Tribunal: I. The Honourable Supreme Court in Kulwant Kaur, cited supra, has expressly stated that a concession, if made and in the event the Court proceeds on the basis of such a concession, the decision cannot by any stretch be termed to be a binding precedent. The Tribunal in ATV has overlooked this judgement and assumed that dehors the concession made by the Learned ASG which formed the basis for the adjudication in Slovak, the Order of the Honourable Supreme Court in Slovak was a speaking order passed by the Court on a question of law, thereby binding the parties and the lower adjudicating authorities because of Article 141. II. The binding decisions as laid down in the larger bench decisio....
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....- AIR 1997 SC 1796; V.M. Salgaocar & Bros. (P) Ltd. v. Commissioner of Income Tax - AIR 2000 SC 1623; Saurashtra Oil Mills Assn., Gujrat v. State of Gujrat & Anr. - AIR 2002 SC 1130; Union of India & Ors. v. Jaipal Singh - (2004) 1 SCC 121; and Y. Satyanarayan Reddy v. Mandal Revenue Officer, Andhra Pradesh - (2009) 9 SCC 447]." IV. It also escaped the Tribunal's' attention that the three-judge bench decision of the Apex Court in Khoday Industries (supra), while noticing Gangadhara Palo, instead directly relied on the reasoning given by Kunhayammed and affirmed and reiterated para 44 thereof. 85. We emphasize that apart from the three judge bench decision of the Honourable High Court of Bombay in M/s. Gauri Plasticulture Pvt Ltd v. The Commissioner of Central Excise, Indore, 2019-TIOL-1248-HC-MUM-CX-LB : 2019 ((30) GSTL 224 (Bom), which has categorically held that the order of the Hon'ble Supreme Court in the case of Slovak India (supra) cannot be read as a declaration of law under Article 141 of the Constitution of India, no other decision of any other High Court holding specifically to the contrary as an answer to a specific question in this regard framed, has been br....
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.... India Ltd. Vs. The Commissioner of G.S.T. & Central Excise, Chennai South Commissionerate [2019 (3) TMI 974 CESTAT CHENNAI] and M/s Nissan Motor India P. Ltd. Vs CCE, Chennai IV (2018 (6) TMI 637 CESTAT Chennai), and M/s. Srinivasa Hair Industries Vs. CCE, Chennai [2016 (6) TMI 673-CESTAT Chennai] relied on by the appellant were rendered prior to the decision of the Hon'ble Bombay High Court in Gauri Plasticulture 2 and as such did not benefit from the ratio laid down therein. The decision in M/s. ATV Projects India, and the decision in M/s. Kinol Lubes Pvt Ltd, which had followed M/s. ATV Projects India, are inapplicable in light of the decision of the Honourable Bombay High Court in Gauri Plasticulture 2. Likewise, the decisions of the Tribunal in India Nippon Electricals Ltd and M/s. Larsen & Toubro Ltd, cited supra and relied upon by the appellant for the proposition that the larger bench decision of the tribunal is binding on us are distinguishable and do not apply in the facts and circumstances herein given that we have already elucidated why we are required to rely on the Bombay High Court decision in Gauri Plasticulture 2 in light of the binding larger bench decisions....
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....xing statutes in accordance with the policy objectives of Fiscal Statutes. 91. It is seen that the Bombay High Court in M/s. Gauri Plasticulture Pvt Ltd v. The Commissioner of Central Excise, Indore, 2019-TIOL-1248-HC-MUM-CX-LB : 2019 ((30) GSTL 224 (Bom) has held as under: "21. In this regard, a reference can usefully be made to the judgment of the Hon'ble Supreme Court setting out the fundamental legal principles. These are that in a fiscal statute, nothing can be read, into its provisions and rather should not be read, which is expressly not there. In other words, an implied meaning cannot be given. The Hon'ble Supreme Court in one of the decisions, in the case of Union of India and Ors. vs. Ind- Swift Laboratories Limited MANU/SC/0140/2011 : (2011) 4 SCC 635 summarised the legal position thus:- "20. A taxing statute must be interpreted in the light of what is clearly expressed. It is not permissible to import provisions in a taxing statute so as to supply any assumed deficiency. In support of the same we may refer to the decision of this Court in CST v. Modi Sugar Mills Ltd. wherein this Court at AIR para 11 has observed as follows: "11. ......
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....diture incurred by an assessee for any purpose which is an offence or which is prohibited by law shall not be deemed to have been incurred for the purpose of business or profession and no deduction or allowance shall be made in respect of such expenditure. High Court went on to hold that the rigour of explanation to Section 37 was fully satisfied and hence the question claiming any deduction for the value of seized article did not arise nor was an assessee entitled to claim any such deduction who was bound in indulging in such heinous and illegal business unconnected with his pious professional activity. However, the Apex Court found that the explanation to Section 37 has really nothing to do with the present case as it is not a case of a business expenditure, but of business loss. Business losses are allowable on ordinary commercial principles in computing profits. Once it is found that the heroin seized formed part of the stock in trade of the assessee, it follows that the seizure and confiscation of such stock in trade has to be allowed as a business loss. In this background, the Honourable Apex Court held as under: "10... In our opinion, the High Court has adopted....
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....levant portions of the decision are reproduced hereinunder: "Policy of Refund of Input Credit is Regulated by Statutory Provisions 5.7 A distinction between provisions of statute which are of substantive character and are built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in their nature, on the other, must be kept clearly distinguished. An eligibility criteria to get refund calls for a strict construction, although construction of a condition thereof may be given a liberal meaning if the same is directory in nature. The doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can be reasonably expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the "essence" or the "substance" of the requirements. Like the concept of "reasonableness", the acceptance or otherwise of a plea of "substantial compliance" depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to ac....
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....e not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance of those factors which are considered as essential. In the cases of refund substantial compliance to the law granting refund is sine qua non. Courts have to decide what the law is but not what it should be 5.10 In a plethora of cases, it has been stated by various judicial pronouncements that where, the language is clear, the intention of the legislature is to be gathered from the language used. It is not the duty of the court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The court cannot add words to a statute or read words into it which are not there. The court cannot, on an assumption that there is a defect or an omission in the words used by the legislature, correct or make up assumed deficiency, when the words are clear and unambiguous....
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....is an implied bar for refund. When right to refund does not accrue under law, claim thereof is inconceivable. Therefore, present reference is to be answered negatively and in favour of Revenue since refund of unutilized credit is only permissible in case of export of goods and for no other reason whatsoever that may be. As has been stated earlier that equity, justice and good conscience are the guiding factors for Civil Courts, no fiscal Courts are governed by these concepts, the present reference is bound to be answered in favour of Revenue and it is answered accordingly. (emphasis supplied) 98. The Bombay High Court in M/s. Gauri Plasticulture Pvt Ltd v. The Commissioner of Central Excise, Indore, 2019-TIOL-1248-HC-MUM-CX-LB : 2019 ((30) GSTL 224 (Bom) has also noticed the decision of the Tribunal in Steel Strips v CCE, Ludhiana, 2011 (269) ELT 257 (Tri-LB). 99. An attendant issue on fact that arises is also whether the appellant has successfully rebutted the presumption of unjust enrichment. We find that while the adjudicating authority has noted the factum of an abnormal accumulation of credit, it had not undergone further scrutiny given the view held that in the absence ....
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....osting of a particular product. Therefore it cannot be said that the principle laid down by the Court in Solar Pesticides would not extend to capital goods which are used in the manufacture of a product and have gone into the costing of the goods. In order to come out of the applicability of the doctrine of unjust enrichment, it therefor becomes necessary for the assessee to demonstrate that in the costing of the particular product, the cost of capital goods was not taken into consideration. We, thus, are of the opinion that the view taken by the Tribunal is not correct in law. (emphasis supplied). 100. Therefore, we are of the view, that absent clarity on the above aspects it cannot be held that the appellant has successfully rebutted the presumption of unjust enrichment. In this context, reverting to the nine Judge Constitution Bench of the Honourable Apex Court in the case of Mafatlal Industries Ltd v. Union of India, 1996 INSC 1514 is apposite. The following findings merit being borne in mind: 99 "(iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contem....