TMI Blog2011 (1) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... as invoked the extraordinary writ jurisdiction of this court to challenge the show cause notice issued under Section 11-B of the Central Excise Act, 1944 by the Assistant Commissioner of Central Excise, Puducherry I Division vide C.No. V/39/18/04/02-RF PF-1 dated 16-11-2007. 2. The facts leading to the filing of the writ petition are that the petitioner is a company registered under the Companies Act, 1956 and is engaged in manufacture of plastic furniture including chairs. The petitioner-company is registered under the Central Excise Act and is assessed on the file of the respondent. The petitioner earlier had two units i.e. Unit-I situated at R.S. No. 112/4, 5, 6, 7, 8 9, Sedarapet Industrial Area, Sedarapet, Puducherry and unit - II situated at the above mentioned address and subsequently Unit-I was closed. The petitioner during the year 1999 to 2001 cleared plastic chairs manufactured at their factory at Pondicherry duly discharging the liabilities. The case of the petitioner is that, in case the chairs cleared suffers from any defects, the same are returned to the factory and the petitioner with respect to such goods is entitled to refund as per the procedure laid down und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2000-RF V/94/18/157/2000-RF, dated 4-12-2000 12. 21-11-2000 2,34,361 V/94/18/158/2000-RF V/94/18/157/2000-RF, dated 4-12-2000 13. 21-11-2000 3,32,299 V/94/18/159/2000-RF V/94/18/157/2000-RF, dated 4-12-2000 14. 21-11-2000 1,96,601 V/94/18/160/2000-RF V/94/18/157/2000-RF, dated 4-12-2000 15. 1-10-2001 3,47,151 V/90/18/258/2001-RF V/94/18/258/2001-RF, dated 2-11-2001 16. 1-10-2001 3,50,416 V/90/18/259/2001-RF V/94/18/258/2001-RF, dated 2-11-2001 17. 1-10-2001 4,42,420 V/90/18/260/2001-RF V/94/18/258/2001-RF, dated 2-11-2001 3. The question as to whether the relief could be declined to the petitioner on the ground of undue enrichment was also considered by the appellate authority, namely the Commissioner of Customs and Central Excise (Appeals), No. 1, Williams Road, Cantonment, Trichirapalli-620 001 in A.Nos. 65/2001, 19/2002 229/2002-TRY and it was ordered as under :- 14. As regards the question of unjust enrichment, I find that it has been categorically held by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in any judgment, decree, order or direction of the Appellate Tribunal of any Court in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). 10. The contention of the learned counsel for the respondent is that the refund under sub clause (2) is subject to the condition that the refund should not cause undue enrichment to the party claiming the refund. In view of sub-clause (3) of Section 11-B, it is open to the respondent to issue show cause notice to the petitioner under Section 11-B of the Central Excise Act, 1944, calling upon assessee to justify whether a refund would not result in undue enrichment. 11. It is also the contention of the learned counsel for the respondent that the findings of the appellate authority referred to above were in the nature of obiter only, as it was not a question in issue before the appellate authority. The findings of the appellate authorities therefore cannot come in the way of exercising of statutory powers under Section 11-B of the Central Excise Act, 1944. 12. The learned counsel for the respondent in support of his cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res to be set aside only on this limited ground. Thus, while upholding the plea of the respondents that the disputed import duty paid by it was not legally payable, still the question survives for consideration as to whether refund could have been ordered to it if the burden of duty was passed on to third parties. Only for deciding this limited question the proceedings will have to be remanded to the Assistant Collector from whose order the proceedings arose in writ petition before learned Single Judge and ultimately went before the Division Bench which disposed of the same by the impugned order. 13. As already observed over, the learned counsel for the respondent further also contended that the observation by the appellate authority was based on the judgment of the CEGAT in the case of Asea Brown Boveri Ltd. v. Commissioner of C.Ex., Bangalore and therefore the reading of the said judgment would show that no benefit can be drawn by the petitioner from the said judgment, as the finding of the appellate authority can be held to be obiter which would bar the Revenue from invoking Section 11-B. 14. The learned counsel for the respondent also contended that on true interpretations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 (5) S.T.R. 177 (S.C.), wherein it was held as under :- We have noticed hereinbefore that the application for refund was rejected by the Assessing Authority. It was, however, allowed by the Appellate Authority. It is not in dispute that no further appeal was taken therefrom. The said order, therefore, attained finality. It matters little as to whether the application for refund was in the prescribed form or not. The respondents herein could raise all contentions before the Appellate Authority, in fact, before the original authority, a plea of unjust enrichment was raised. Such a plea, however, appears to have not been raised before the Appellate Authority. If no such plea was raised, only because the appellant herein filed an application to be dealt with on the administrative side for refund subsequently, the same would not, in our considered view, attract the provisions of Section 11B as inserted by the Amending Act of 1991. 21. In view of the findings recorded above and in view of the judgment of Hon ble Supreme Court it has to be held that the matter which stand concluded, finally between the parties cannot be reopened by invoking Section 11B of the Central Excise Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
