TaxTMI 
TaxTMI 
2025 (7) TMI 937
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....at after the amendment to the tariff that cutting, sewing granite marble box into slabs amounted to manufacture and held that the appellant was liable to duty from 01.03.2006 onwards and hence, the claim for refund was not maintainable for the period after 01.03.2006. For the period 2004-2005 upto 28.02.2006, the claim was rejected on the ground of time bar, since the refund claim was filed on 19.02.2008 which was beyond the time limit prescribed by law. He also noted that the appellant in their Writ Appeal had declared that they would be undertaking to refund the amount collected as duty from customers to answer the question of unjust enrichment. However, it was observed that since the refund claim is rejected on the ground of limitation, he did not wish to labour on other aspects of defences relating to unjust enrichment. Aggrieved by this order, the appellant is in appeal before us. 2. The learned counsel submitted that at the outset since the Finance Act, 2006 vide Section 67(a) amended the First Schedule to the Central Excise Tariff Act 1985, inserting Note 6 to Chapter 25 with effect from 01.03.2006 in terms of which Process of cutting, sewing and polishing of stone blocks....
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....rary to law but also contrary to the aforesaid order passed by the Hon'ble High Court. He further places reliance on the decisions of a coordinate bench of this Tribunal in the case of Forius Infradevelopers LLP vs. PCCT vide Final Order No.20554/2024 in Appeal No.ST/20501/2022 dated 05.06.2024 and various other decisions, wherein this Tribunal had held that the statutory limitation period prescribed under Section 11B is not applicable to the refund claim by the appellant since the amount paid by the appellant is under mistake of law and did not constitute a tax and consequently, on its own directed refund of the amounts paid. 3. The Authorized Representative (AR) for the Revenue submitted that the original authority had observed that the marble rough blocks and granite rough blocks were classified under CTH 2515 1100 and 2516 1100 respectively. However, when the slabs were sold for DTA clearances, the same were classified under CTH 68. As per Chapter Note of Chapter 25 of Central Excise Tariff Act, 1985 "in relation to the products of headings 2515 and 2516, the process of cutting or sawing or polishing or any other process, for converting of stone blocks into slabs or tiles, s....
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....arble Industries (P) Ltd. (supra) was not applicable to the facts of the present case since the goods were cleared under CTH 68 by the appellant and secondly, the refund claim was hit by limitation. The appellant aggrieved by this order filed an appeal before the Commissioner (Appeals) and simultaneously, filed a Writ Petition No.7699/2008 before the Hon'ble High Court. The appellants vide letter dated 12.07.2008 sought withdrawal of the appeal filed before the Commissioner (Appeals) and accordingly, the Commissioner (Appeals) vide Order-in-Appeal No. 141/2008 dated 27.11.2008 dismissed the appeal as withdrawn. Meanwhile, the Hon'ble High Court of Karnataka in Writ Petition No. 7699/2008 vide order dated 24.03.2009 observed as follows: "10. In the impugned order dated 08.04.2008 at Annexure - B itself indicates that the petitioner had a right of appeal under Sec. 128 of the Customs Act. It appears that the petitioner had preferred an appeal before the Commissioner for Customs but it appears that the petitioner had withdrawn the appeal on 27.11.2008 subsequently and has instead approached this Court by filing the above writ petition. 11. If the petitioner had the b....
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....re is a statutory remedy under the Customs Act. We see no good ground to entertain the writ appeal. 4. In the result, the writ appeal fails and the same is hereby dismissed keeping open all the contentions." 4.1 The Commissioner (Appeals) considering all these aspects vide the impugned Order-in-Appeal No. 49/2011 dated 23.06.2011 reviving the Commissioner (Appeals)'s order decided the appeal on merit and held that the refund claim for the period after 01.03.2006 admittedly was not maintainable. For the period 2004-05 upto 28.02.2006 the refund claim was rejected observing as follows: "7. The main ground on which the appellants have sought for refund of duty paid towards DTA during the period 2004-05 to Jan 2008 is on the basis of decision in the case of Aman Marble Industries as reported in 2003 (157) ELT 393(SC) followed with other decisions, subsequently, wherein it is held cutting/sawing granite/marble blocks into slabs do not amount to manufacture. The other admitted fact is that the amendment in note 6 to chapter 25 of CET providing the cutting/sawing etc., of rough blocks amounting to manufacture under Section 2(f) of CEA, 1944 was w.e.f 1-03-06. The appe....
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....e appellants to wake up at a much later date and agitate such questions in a refund application and further through writ petition filed by them. In the circumstances, I find that the starting point for computing limitation cannot be a presumed date in the year 2007. The appellants in the writ petition had also accepted that the appellate authority and the lower authority are all the creatures of the same statute and cannot apply the provisions of general law of limitation. It is for this said purpose the appellants had attempted to seek an alternative remedy by way of a writ before the Hon'ble High Court of Karnataka, which is not been fruitful. I find the instant refund claims have been filed on 19.02.2008, covering the period 2004-2005 to 28.02.2006 despite the fact the appellants knew the amendment to Note 6 of Chapter 25, which was effective from 01.03.2006. The belated awakening of the appellants in filing a refund claim on 19.02.2008 after accepting the excisability and the dutiability of the impugned goods from 01.03.2006 onwards is undoubtedly beyond the permissible limit prescribed under the statute (Central Excise Act / Customs Act). I therefore find the refund claims....
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....re for the purpose of the Central Excise Act. The Tribunal by a majority decision took the view that the commodity in question falls within entry 25.04 of the Tariff but to examine certain aspects on facts remitted the matter to the assessing authority. 2. The contention put forth on behalf of the appellant is that the activity carried on by the appellant does not amount to manufacture at all. The case put forth by the learned Counsel appearing on behalf of the appellant is that the cutting of blocks into marble slabs involves only sawing of the marble blocks and thereby does not bring into existence a distinct commodity so as to state that when such activity is completed a new substance has come into existence. The submission is that even after such activity is completed the marble will remain marble and, therefore, this activity does not attract tax. 3. Learned Counsel for the department however submitted that the activity has been specifically brought into Tariff item and when certain processes are applied to a commodity to make it marketable, it certainly amounts to manufacture and thereof attracts tax under the Central Excise Act. 4. In Rajasthan Sta....
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....e questions the levy but fails before the original authority and keeps quiet. It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders in any of the situations have become final against him. Then what happens is that after an year, five years, ten years, twenty years or even much later, a decision is rendered by a High Court or the Supreme Court in the case of another person holding that duty was not payable or was payable at a lesser rate in such a case. (We must reiterate and emphasise that while dealing with this situation we are keeping out the situation where the provision under which the duty is levied is declared unconstitutional by a court; that is a separate category and the discussion in this paragraph does not include that situation. In other words, we are dealing with a case where the duty was paid on account of mis-construction, mis-application or wrong interpretation of a provision of law, rule, notification or regulation, as the case may be.) Is it open to the manufacturer to say that the decision of a High Court or the Supreme ....
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....emphasis. And all this because another manufacturer or assessee has obtained a decision favourable to him. What has indeed been happening all these years is that just because one or a few of the assesses succeed in having their interpretation or contention accepted by a High Court or the Supreme Court, all the manufacturers/Assessees all over the country are filing refund claims within three years of such decision, irrespective of the fact that they may have paid the duty, say thirty years back, under similar provisions - and their claims are being allowed by courts. All this is said to be flowing from Article 265 which basis, as we have explained hereinbefore, is totally unsustainable for the reason that the Central Excise Act and the Rules made thereunder including Section 11B/Rule 11 too constitute "law" within the meaning of Article 265 and that in the face of the said provisions - which are exclusive in their nature - no claim for refund is maintainable except under and in accordance therewith. The second basic concept of law which is violated by permitting the above situation is the sanctity of the provisions of the Central Excises and Salt Act itself. The Act provides for le....
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.... can be ignored because some years later another view of law is taken by another court in another person's case. Nor is there any provision in the Act for re-opening the concluded proceedings on the aforesaid basis. We must reiterate that the provisions of the Central Excise Act also constitute "law" within the meaning of Article 265 and any collection or retention of tax in accordance or pursuant to the said provisions is collection or retention under "the authority of law" within the meaning of the said article. In short, no claim for refund is permissible except under and in accordance with Rule 11 and Section 11B. An order or decree of a court does not become ineffective or unenforceable simply because at a later point of time, a different view of law is taken. If this theory is applied universally, it will lead to unimaginable chaos. It is, however, suggested that this result follows only in tax matters because of Article 265. The explanation offered is untenable as demonstrated hereinbefore. As a matter of fact, the situation today is chaotic because of the principles supposedly emerging from Kanhaiyalal and other decisions following it. Every decision of this Court ....
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....essment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. 104. The claims for refund can arise under three broad classes and the issue of ouster of jurisdiction of civil courts can be understood by focussing on the parameters of these classes which are as follows : Class III : "Mistake of Law" - where claims for refund are initiated on the basis of a decision rendered in favour of another assessee holding the levy to be : (1) unconstitutional; or (2) without inherent jurisdiction. Ordinarily, no assessee can be allowed to reopen proceedings that have been finally concluded against him on the basis of a favourable decision in the case of another assessee. This is because an order which has become final in the case of an assessee will continue to stand until it is specifically recalled or set aside in his own cas....
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....Limited (supra) in the case of M/s. Unicorn Industries (supra) cannot have a bearing on past decisions which had attained finality although they had followed SRD Nutrients (P) Limited (supra), which was subsequently overruled in M/s. Unicorn Industries. Otherwise a pandora's box would be opened and there would be no end to litigation, which is against public policy. 12. That is exactly what is sought to be done by the reference order dated 27-9-2021. When we read the reference order in light of the what has been discussed, we find that the reference order was unnecessary. 13. In the circumstances, the Special Leave Petitions are dismissed". 7.3 In a similar set of facts, the Hon'ble Supreme Court in the case of Union of India vs. Saraswati Marble & Granite Industries Pvt. Ltd. 2015 (326) E.L.T. 427 (S.C.) observed as follows: "2. These two appeals are filed challenging the judgments of the High Court of Rajasthan whereby the excise duty and penalty which was paid by the respondents herein have been quashed. 3. The proceedings arise out of Show Cause Notices issued to the respondents on the ground that cutting of marble blocks into marble slabs....
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.... in the impugned judgments to refund the amount of duty, interest and penalty is concerned, the same is set aside. However, once this Court has settled the position of law holding that the aforesaid process would not amount to manufacture, from the date of the judgment of this Court, the Excise Department is not entitled to recover any such excise duty from the respondents". 7.4 The above decision is aptly applicable to the present set of facts; and hence, the claim for refund had to be filed necessarily within six months from the date of dispute and as rightly held by the Commissioner (Appeals), the claim is clearly time barred as it was filed on 19.02.2008 for the duty paid for the period from 2004-2005 to February 2006. 8. It may not be out of place to narrate the observations of the Hon'ble High Court of Karnataka when the appellant in the first instance filed a Writ Petition. wherein the Hon'ble High Court observed as follows: "11. If the petitioner had the benefit of declaration of law as declared by the Supreme Court in the case of Aman Marbles Industries Private Limited -vs- Collector of C. Ex., Jaipur, even at the time of payment and collection of excise dut....