TMI Blog1991 (12) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner's factory and seized the goods on the ground that the petitioner was carrying on business in violation of the provisions of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act). Proceedings were commenced against the petitioner and an adjudication order was passed classifying the goods produced by the petitioner under Tariff Item No. 50 of the First Schedule of the Act as it then stood. The petitioner preferred an appeal from the adjudication order. The appeal was rejected. The petitioner preferred a further appeal to the Customs, Excise and Gold (Control) Appellate Tribunal (referred to as CEGAT) against the order of the Appellate Collector. The Tribunal held that the goods did not fall under the Tariff Item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 of the erstwhile First Schedule to the Act. By an Order dated 1/23-8-1989, the Assistant Collector rejected the petitioner's application. The petitioner preferred an appeal from the order of rejection. The appeal was allowed by the Collector of Central Excise (Appeals) on 11-4-1990. The Assistant Collector was directed by the Collector to "reconsider the case of the appellant for refund on merits in the light of the clear orders of the CEGAT". 7. No steps were however taken by the Assistant Collector to comply with the orders of the Collector (Appeals). By letters dated 25-4-1990,12-6-1990 and 12-7-1990, the petitioner wrote to the Assistant Collector to dispose of the petitioner's application for refund. The Assistant Collector did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er's application for refund finally by an order dated 6th March 1991. In that order the Assistant Collector held that the petitioner's claim for Rs. 15,23,530.30 was not justitled but that the petitioner should have claimed for refund for the amount of Rs. 10,70,973.04. This was done on the basis that prior to the classification under the 1986 Act the goods were liable to excise duty under Tariff Item 26AA (ia) of the erstwhile First Schedule to the Act. However, the Asstt. Collector rejected the petitioner's claim for refund on the grounds that the petitioner was not the actual payer of Central Excise duty. According to the Assistant Collector the actual payer of the duty was the ultimate actual consumer of goods. According to the Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rules framed thereunder empowering the Department to reject the refund claims on the grounds that sanction of the claim would result in a fortuitous benefit to the manufacturers". iii) That the refund to the petitioner could not have been refused in view of the specific direction of this Court on the first writ petition. 10. On behalf of the respondents it had been contended that - i) Disputed questions of fact were involved and therefore the application should not be entertained by the court in its writ jurisdiction. ii) The petitioner had an alternative remedy available to it under the Act. iii) If the refund was allowed to the petitioner it would be detrimental to the actual consumers who had ultimately paid the duty. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d contention of the respondents in my view having found that an amount of Rs. 10,70,973.04 was refundable, the Assistant Collector had no jurisdiction to deny payment of the amount to the petitioner contrary to the directive of this Court. The refusal of the Assistant Collector is also otherwise unjustified. 15. As held by a Single Learned Judge of this Court in the case of Orient Paper and Industries Ltd. (supra) "If the excise authority thereafter refused to refund the amount which was unlawfully realised from the petitioner, that will be morally and legally a wrongful act. If the petitioner's claim is denied, it will be unlawful enrichment on the part of the Government." 16. Again in Gonterman Peipers (India) Ltd. (supra) another L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty is paid by the assessee. Section 11B(3) provides as follows :- "(3) ... Where as a result of any order passed in appeal or revision under this Act refund of any duty of excise becomes due to any person, the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf." The phrase 'such person' refers to the applicant for refund. 20. The refund in this case became due to the petitioner by virtue of the order of CEGAT. This was clarified by the order of the Collector (Appeals) on 11-4-1990. The respondents were therefore, under a statutory duty to refund the amount to the petitioner. 21. Finally the circular issued by the Central Board of Excise and Customs dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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