2009 (3) TMI 1113 - HC - Customs

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the conversion of granite blocks into granite slabs constitutes a manufacturing activity attracting excise duty.

- Whether the petitioner, a 100% Export Oriented Unit (EOU), was liable to pay excise duty on domestic clearances of granite slabs.

- Whether the petitioner was entitled to refund of excise duty paid on domestic clearances during the period April 2004 to January 2008.

- Whether the petitioner's refund application under Section 128(1) of the Customs Act, 1962 was valid and maintainable.

- Whether the petitioner was precluded from seeking refund by withdrawing the appeal filed before the Commissioner of Customs and instead approaching the High Court by way of writ petition.

- The applicability and effect of the Supreme Court decision in Aman Marble Industries Private Limited -vs- Collector of C.Ex., Jaipur on the present case.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Whether conversion of granite blocks into granite slabs is a manufacturing activity attracting excise duty

The legal framework relevant to this issue is the Central Excise Act and the interpretation of "manufacture" under the Act. The Supreme Court's ruling in Aman Marble Industries Private Limited -vs- Collector of C.Ex., Jaipur, is a binding precedent where it was held that the activity of converting marble blocks into slabs did not amount to manufacture attracting excise duty.

The Court acknowledged this precedent and noted that the petitioner's activity was similar in nature, involving conversion of granite blocks into slabs. The petitioner relied heavily on this decision to argue that excise duty was not payable on such activity.

However, the Court observed that the petitioner had paid excise duty on domestic clearances and had not challenged the levy at the time of assessment or collection. The Court emphasized that the levy was made by a competent authority and was valid unless set aside by a superior authority or appellate forum.

Thus, while the Supreme Court's decision favored the petitioner's interpretation of the manufacturing activity, the Court did not examine the validity of the levy afresh in the writ petition, given procedural and limitation aspects.

Issue 2: Whether the petitioner was liable to pay excise duty on domestic clearances despite being a 100% EOU

The petitioner's factory was a 100% Export Oriented Unit enjoying certain relaxation benefits. However, 50% of the production was cleared for domestic tariff area on payment of excise duty. The petitioner contended that since the slabs were manufactured for export, excise duty should not have been levied on domestic clearances.

The Court noted that the petitioner had voluntarily paid excise duty on domestic clearances and did not dispute the levy at the relevant time. The legal provisions governing EOUs allow for payment of duty on goods cleared for domestic consumption. The petitioner's claim for refund was based on the contention that no excise duty was payable at all.

The Court did not find it necessary to delve into the merits of the liability for excise duty on domestic clearances in this writ petition, especially since the petitioner had not pursued the statutory appellate remedy effectively.

Issue 3: Entitlement to refund of excise duty paid during April 2004 to January 2008

The petitioner filed refund applications under Section 128(1) of the Customs Act, 1962, seeking refund of excise duty paid on domestic clearances. The Assistant Commissioner of Customs rejected the refund application on the ground that it was barred by limitation and that the petitioner had no case on merits.

The petitioner challenged this rejection by filing the present writ petition. The Court observed that Section 128(1) provides a statutory remedy for refund claims and also provides for appeal against orders rejecting refund claims.

The petitioner had filed an appeal before the Commissioner of Customs but subsequently withdrew it and chose to file the writ petition instead. The Court held that the petitioner's failure to exhaust the statutory remedy and withdrawal of the appeal precluded it from seeking relief by way of writ petition.

The Court further held that a levy made by a competent authority cannot be challenged in a writ petition if alternative statutory remedies are available and not exhausted. The refund application was rightly rejected on limitation and merits grounds, and the writ petition was not the appropriate forum to re-agitate the issue.

Issue 4: Maintainability of writ petition in view of alternative statutory remedies

The respondents contended that the petitioner had an alternative remedy under Section 128 of the Customs Act and that the writ petition was not maintainable. The Court agreed and observed that the petitioner had initially availed the appellate remedy but withdrew the appeal and chose to file the writ petition.

The Court emphasized the principle that where an efficacious alternative remedy exists, writ jurisdiction should not be exercised to bypass such remedy. The petitioner's withdrawal of the appeal did not entitle it to seek relief in writ jurisdiction.

The Court reserved liberty to the petitioner to revive the appeal before the Commissioner of Customs, thereby preserving the statutory remedy for adjudication of the refund claim.

Issue 5: Effect of Supreme Court decision in Aman Marble Industries on the present case

The petitioner relied on the Supreme Court decision in Aman Marble Industries to contend that no excise duty was payable on the activity of converting granite blocks into slabs. The Court acknowledged the binding nature of this precedent but noted that the petitioner had not challenged the levy at the time of collection or assessment.

The Court held that the benefit of the Supreme Court decision cannot be claimed belatedly through a refund application or writ petition after a considerable lapse of time. The petitioner's failure to challenge the levy timely disentitled it from claiming refund subsequently.

The Court thus declined to grant any declaration or relief based on the Supreme Court decision in the present writ petition.

3. SIGNIFICANT HOLDINGS

"A levy without authority of law while is definitely frowned in terms of Articles 265 of the Constitution of India, the present levy and collection of excise duty was by the competent officer and until and unless it is declared that such order was bad in law by a superior authority as provided under the Central Excise Act and consequentially it is held that the collection under the provisions of the Act is also bad. Refund application cannot succeed by itself."

"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 duty and if the petitioner had not questioned the legality of such levy at that time, it will be too late for the petitioner to wake up much later and agitate such questions in a refund application and further in this writ petition."

"Where an efficacious alternative remedy exists, writ jurisdiction should not be exercised to bypass such remedy."

"The petitioner's withdrawal of the appeal before the Commissioner of Customs and foregoes that remedy, that development cannot constitute a ground in the present writ petition for seeking quashing of the order of the Assistant Commissioner of Customs rejecting the refund application."

Core principles established include the necessity of exhausting statutory remedies before approaching writ jurisdiction, the binding effect of precedent subject to timely challenge, and the procedural bar against belated claims for refund of excise duty paid under valid levy orders.

Final determinations:

- The writ petition challenging the rejection of refund application is dismissed as not maintainable.

- The petitioner is not entitled to refund of excise duty paid on domestic clearances in the absence of timely challenge to the levy.

- The petitioner is granted liberty to revive the appeal before the Commissioner of Customs to pursue statutory remedy.