TaxTMI 
TaxTMI 
2002 (1) TMI 71
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....1988, according to the petitioner Company, cess was paid under a bona fide belief that the fabric in question is subject to the handloom Cess, whereas the fabric in question was falling under Chapter 52.09 of the Central Excise Tariff Act, 1985, chargeable at nil rate of Basic Excise Duty. Prior to the introduction of the aforesaid Act of 1985, the fabric in question fell under classification No. 19-I(B) of the First Schedule to the Central Excise and Salt Act, 1944 and that too, was chargeable to nil rate of Basic Excise Duty. The petitioner Company entertained a doubt whether the Handloom Cess is leviable on the fabric in question from the query raised by one of its customers viz; Jeetu Agencies in the letter dated 14-12-1988. In the said....
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....of law, the claim for refund of such unauthorised recovery of tax is not governed by the limitation provided by Section 11-B of the Central Excise Act but by the General Law of Limitation i.e. within the period of three years from the date of discovery of mistake. 3.Mr. N.M. Lodha, Central Government Standing Counsel, has raised an objection with respect to the maintainability of the writ petition on the ground of alternate remedy. It is submitted that against the impugned order of the Assistant Collector, an statutory appeal is maintainable before the Collector (Appeals) as provided under Section 35(C) of the Central Excise and Salt Act, 1944. Per contra, it is submitted by Mr. M.S. Singhvi that the provisions of the Central Excise Act ....
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....tutional, no direction with respect to refund of tax can be given automatically. The Court can in its discretion mould and restrict the relief in the manner appropriate to the situation. 6.In Mafatlal Industries v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.) = 1997 (5) SCC 536, the Apex Court held that the concept of economic justice demands that in the case of indirect taxes like Central Excise duties and Customs duties, the tax collected without the authority of law shall not be refunded to the assessee, unless he alleges and establishes that he has not passed on the burden of duty to a third party and that he himself has borne the burden of the said duty. The Court observed thus : "One of the equitable considerations may....
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....) p. 55. 8.In the case of U.P. Pollution Control Board's case (supra), relied upon by the petitioner, the assessee had specifically pleaded that they did not pass on the liability of water cess on their customers. For the convenience, para 25 of the judgment is extracted as follows : "The respondents had specifically pleaded that they did not pass on the liability of the water cess on their customers; it appears this contention was not denied by the petitioners before the High Court. On the other hand the only plea taken by the petitioners was that money had been passed to the Central Government under Section 8 of the Act. It was brought to the notice of the Court by the respondents that 65% of the sugar was sold by the respondents th....