TMI Blog2000 (6) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... inting Papers manufactured by the New India Industries Ltd., Bombay for the period from 1-3-1974 to 31-10-1984. The respondents paid Central Excise duty amounting to Rs. 1,25,34,988.97 in respect of the above goods. After the judgment of the Supreme Court in the case of Bombay Tyres International the department accepted the manufactured price of New India Industries Ltd. on 31-10-1984. Three refund claims were filed on 11-8-1986, 29-9-1986, and 7-4-1987. Show cause notices were issued by the Deptt. proposing to reject the refund claim. Writ Petition No. 1336/87 was filed by the New India Industries Ltd. challenging the same. On 29-8-1988 the Hon b1e Justice Ashok Agarwal (as his Lordship then was) passed order declaring that the respondents before us and New India Inds. Ltd. were not related persons. As far as the question of unjust enrichment is concerned the learned Judge referred to the matter to Full Bench. On 27-11-1989 the Hon ble Full Bench observed that the Central Excise department is bound by law to refund the amount to New India Inds. Ltd. On 17-1-1990 in pursuance thereof the learned single Judge of the Bombay High Court directed the department to file affidavit and als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund under section 11B within sixty days from today. 4. On 11-2-1997 the respondent before us filed the refund claim before the AC. On 9-5-1997 the department issued a show cause notice reading as under : Whereas it appears that Ms. Allied Photographies India Ltd., formerly known as M/s. Agfa Gaevart India Ltd., situated at the above noted address, hereinafter referred to as M/s. Allied have a claim of refund of Central Excise duty amounting to Rs. 1,25,34,988.97 under their letter Ref. MHT/AB dated 11-2-1997. And Whereas it further appears that M/s. Allied have filed the said refund claim in view of the Hon ble Supreme Court judgment in the case of M/s. Mafatlal Industries reported in 1997 (89) E.L.T. 247 (S.C.). On scrutiny of the said refund claim, it appears that : (1) M/s. Allied has filed only an affidavit in order to substantiate their claim of having not passed on the burden of excess excise duty to their customers, instead of any documentary or other evidence (including the documents referred to in Section 12A) as per the statutory requirement under Section 11B of Central Excise Act, 1944, since as per the Hon. Supreme Court judgment (supra), the burden of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of writ petition No. 1776/93. 5. On 30-11-1997 the respondents before us withdrew writ Petition No. 1776/93 after bringing all the facts on record by means of Chamber Summons No. 116/97. The department filed an appeal before the Commissioner (Appeals) who by the impugned order confirmed order passed by the Assistant Commissioner. Against the said order the department has filed the present appeal. The respondent before us has also filed a Cross Objection No. 374/99-Mum praying for the interest which they agreed to forgo before the Assistant Commissioner. Hence the matters were heard today. 6. Shri Deepak Kumar, learned DR argued for the department and Shri Pochkhanawala, Senior Counsel along with Shri H.R. Shetty, Advocate, appeared for the respondents. 7. Shri Deepak Kumar argued that the impugned order passed by the Commissioner (Appeals) is bad in law. He states that the point should be considered and decided by the Commissioner (Appeals), as follows : The points to be considered and decided by the Commissioner (Appeals) therefore were - (I) (i) Whether M/s. APIL were entitled for the refund in respect of duty paid by the manufacturer for clearances during 1974-1984 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest @ 12% from the date of withdrawal. He states that from the reading of the Assistant Commissioner s order it will be very clear that in spite of the fact that the High Court has disposed of the matter, an exercise of verification of available invoices. Chartered Accountant s certificates were filed by the respondent explaining as to how there was variation in the margin of profit from 1983 onwards from 12.6 to 21% and how the excise duty charged by NII Ltd. was paid by AGIL which worked out 1.96% of AGIL cost and 1.65 dealers cost. He went through the entire order of the Assistant Commissioner to prove that how the Assistant Commissioner was satisfied that the incidence of duty was not passed on to the consumer. He stated that the interest was forgone before the Assistant Commissioner on the understanding that the refund would have been granted. He also took us through the order of the Commissioner (Appeals) as to how the Commissioner also again went through the correctness of the order in a microscopic way and saw that the order was passed correctly. He says that the impugned order has been passed perfectly in a legal way. The relevant points were considered and if there would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty or higher duty was not passed on to consumers. Therefore in the instant case the evidence on record shows that the incidence of duty was not passed on to customers. Even if there is a price increase, such an increased price by an amount of Rs. 1,00,000/- less than the amount of differential duty involved. Hence in this case there is no increase. He therefore says that the case of the assessees namely the refund should be granted with interest may be accepted. As far as the interest is concerned he states that even though he has waived the interest before the Assistant Commissioner, it was on the under-standing that it will be granted immediately when the passing of the order by the Assistant Commissioner. Even after the Commissioner (Appeals) has accepted the assessees case i.e. rejecting the department s appeal till now no refund has been granted in spite of the fact that no stay has been granted. He also invited our attention to the three letters written by him dated 15-12-1999, 13-1-2000 and 3-2-2000 for calling for the refund of the amount reminding the Commissioner of Central Excise and ACCE. He therefore pleads that what is stated in the High Court order should be com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11-2-1997. It is within the period of 60 days indicated in the said paragraph 100 of the judgment. It is therefore wrong on the part of the department to contend that it was barred by limitation. The Commissioner (Appeals) in the impugned order has held as follows : On applying para 100 of the aforementioned judgment to the present case, I observe that the respondents had filed W.P. No. 1776/93 which was admitted by the Division Bench of the Mumbai High Court vide order dated 28-9-93, and the said writ petition was pending decision as on the date of Supreme Court decision in Mafatlal Industries case. It is a matter of record that the respondents had not filed any refund claim prior to their filing the W.P. No. 1776/93 and hence they are fully covered by para 100 of the Mafatlal case. 12. The appellant consequently as per direction of the Supreme Court filed refund claim before the ACCE duly supported by affidavit. The appellants claim for refund thus cannot be rejected on grounds of limitation since para 100 of Mafatlal Industries case laid down the principles in such a situation where if the application is so filed by them they shall not be rejected on the ground of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that all the documents required for settling the claim were produced. I also find, from the sequence of events the refund claim was sanctioned, pre-audited and amount was deposited in the Court. Therefore, again I find that all the documents were produced otherwise, the refund amount would not have been sanctioned and deposited in the Bombay High Court. It will be totally arbitrary for me to simply reject the refund claim for non-production of invoices after a period of over 15 to 20 years. As regards the contention of the department on the allegation of finality, the term finality is used in the show cause because the issue of unjust enrichment has been decided by the Supreme Court and as the Supreme Court leaves no room to file any litigation on the subject issue any more. This is what it means finality. The Noticee also strongly refuted this part of the allegation which is correct. As regards the refund claim, it is filed in time and more so, as per the orders passed by Supreme Court as well as Bombay High Court supported by an affidavit and other required documents. I find from the record of Writ Petition No. 1336 of 1987 that the petitioner has clearly brought out the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Mumbai High Court in Writ petition No.1336/87, where also it was found by the Hon ble High Court Judge that the said burden of excess excise duty was borne by the respondents. Since the appellants have not put forth any contention by way of an averment least to say by way of any evidence to challenge the correctness and veracity of the affidavit filed before the A.C.C.E., Mulund Divn., and also the affidavit filed before the Mumbai High Court or against the Chartered Accountant s certificate establishing the fact that the incidence of excess duty had been borne and absorbed by the respondents. I do not thus find any reason to interfere in the finding s on this issue in the absence of having any new evidence brought on record. We have extracted the orders from AC as well as from the Commissioner (Appeals) for the purpose of showing that the show cause notice does not indicate any evidence to the contra. Do the grounds of appeal indicate any evidence to the contra? Obviously no. If it is so, how the department can deny the refund claim? The unjust enrichment which the department is pleading, in our view, is wrong inasmuch as the finding given by the AC is that even in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with by the department. In effect, Shri Pochkhanawala stresses the point that the condition imposed on the respondent has been complied with equally opposite conditions which the department was expected to comply with were never complied in refunding the money, neither when the appeal of the department was pending in the Commissioner (Appeals) s forum nor when the appeal was pending before the Tribunal in spite of the fact that there was no stay order emanating from the appellate authorities. 16. Shri Deepak Kumar strenuously argued that after the amendment of the Central Excise Act in terms of the provisions of section 11BB the instant case should be treated only in terms of the amended provisions of law namely if any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application and sub-section (1) of that section that shall be paid to the applicant. The interest of such refund not below 10% and not exceeding 30% per annum is for the time being fixed by the Board on such duty from the date immediately after the expiry of three months from the date of receipt of such application. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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