TMI Blog2007 (12) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... la prescribed by the Honourable Supreme Court in the case of Ujagar Print s clarification 1989 (39) E.L.T. 493 (S.C.); that pursuant to the said order of the Supreme Court, DRW filed refund claim of Rs. 8,16,94,912/-, and according to the appellant, the SCN was issued to DRW calling upon them to show cause as to why the said refund claim should not be rejected and according to the appellant, the proceedings are still pending before the Assistant Commissioner; that the appellant independently filed refund claim dated 13-1-1999 seeking refund of the said amount of Rs. 8,16,94,912/-; that after several reminders by the appellant, the SCN dated 17/19-5-2006 was issued to the appellant by the Assistant Commissioner, Central Excise, Satara Division calling upon them to show cause as to why the said refund claim should not be rejected; that by the above mentioned order-in-original, the adjudicating authority rejected the refund claim of the appellant on the following grounds - (a) the claimant (appellant) is a person other than the manufacturer and thus, they have not filed refund application within the stipulated period of 6 months/1 year from the date of purchase of goods and henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department as premature, in view of the facts that at that time, the matter was still sub judice before the Tribunal; (vii) that until the matter was decided in DRW s favour, the appellant had no locus standi to file a refund claim, and that the appellant had therefore correctly filed the refund claim after the decision of the Appellate Tribunal in DRW s favour; (viii) that the adjudicating authority ought to have appreciated the maxim lex non cogit ad impossibillia (the law does not expect the person to do impossible); (ix) that as regards the aspect as to whether the incidence of burden of duty had been passed on by the appellant or not, the adjudicating authority erred in brushing aside the Chartered/Cost Accountants certificates, worksheets and specimen copies of the invoices produced by the appellant as irrelevant without explaining how the same were irrelevant; (x) that he was bound to have dealt with the evidence produced by the appellant in detail and to give reasoned findings for rejecting the same; (xi) that the adjudicating authority erred in relying upon the decision in the case of Kirloskar Oil Engines, since there existed contrary decision wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under sub judice and the issue became clear when the Tribunal decided finally in DRW s favour vide order dated 14-7-1998. Besides, again the matter became finally resolved only when the department s appeal was dismissed by the Hon ble Supreme Court on 17-3-2005. Accordingly, the appellant s claim that the time limit should be reckoned from the date of Tribunal s order i.e. 14-7-1998 and not from the date of purchase of the goods from DRW. As regards unjust enrichment the appellant argued that they filed all worksheets, cost/Chartered Accountant s certificates and specimen copies of invoices prepared during the material period but the adjudicating authority instead of going into details, simply brushed aside all the documents and also he failed to call for further documents to satisfy himself. As regards filing of refund claim in the prescribed format, the appellant contended that it is a technical issue, which cannot come in a way to deny a substantial benefit. 4.1 Let me take time-bar aspect first. As per sub-section (1) of Section 11B of the Central Excise Act, 1944, any person claiming refund of any duty of excise may make an application for refund of such duty to the Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods in view of the fact that the issue was sub judice and the same was finally settled in favour of the job worker i.e. DRW only vide Tribunal s order dated 14-7-1998. They further argued that, had they filed refund claim before the decision of the Tribunal, the Department would have rejected the refund claim as premature. They also argued that law does not require the person to do the impossible things. Orally the Advocate informed that the job worker have paid duty under protest. They showed a copy of letter evidencing the above. The argument of the appellant is that they could not file refund claim within 6 months/1 year period from the date of purchase of goods since the matter was sub judice and favourable decision in favour of the job worker was delivered only during July, 1998 and this argument, though has got legal force, but such situation was not taken care of under Section 11B of the Central Excise Act, 1944. Under the above circumstances, the information shared by the appellant orally during the PH regarding the payment of duty paid under protest by the job worker, namely, DRW has relevance in the present issue. The second proviso to Section 11B envisages that the limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price of the job worker (DRW) and I found that such worksheet would not be of any use to come to the conclusion whether the appellant has passed on the duty incidence to any other person or not. I find that refund involved in the present issue is running into crores and the issue should not have been dealt with by the adjudicating authority in a very casual manner. It is imperative on his part that he should go into details of the sales invoices and come to the conclusion whether the claim of the appellant that they have not passed on the duty incidence to any other person is true or not. But such exercise has not been carried out. In view of the above, the issue has to be decided afresh by calling for necessary documents from the appellant and then pass a reasoned order. There are also references in the appeal memorandum that the job worker (DRW) have also filed refund claim and subsequently issued with a SCN directing them as to why refund claim should not be rejected. But no discussion is available in the impugned order as to what happened to that refund claim filed by the job worker. Findings on the above aspect is a must, since the issue and the amount involved are one and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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