TMI Blog2006 (11) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... e department had canvassed the dismissal of these appeals on the ground that the appellants had not filed refund claims after getting favourable orders in 1993 1996 from the Commissioner (Appeals) in their two appeals. The impugned order also had been passed on the same basis that the appellants had not filed fresh claims within six months of receipt of the orders of the Commissioner (Appeals). As it appeared that the claims initially filed by the appellant (and rejected by the original authority) were adequate to grant them relief on their getting favourable appellate orders, the impugned order deciding the party to be ineligible for refund was found to be incorrect. Accordingly, this Tribunal had allowed these appeals on 12-10-2006. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 11B, as interpreted herein, and in accordance with law. It is.obvious that if any of such petitioners/appellants/plaintiffs have already taken proceedings for refund under the Act and having failed therein - either partly or wholly - have resorted to writ petition or suit, they shall not be entitled to the benefit of this direction." As the order pronounced by the Tribunal on 12-10-2006 seemed inconsistent with the above directions of the Apex Court, that decision is recalled for hearing on 3-11-06. The appeals were heard and orders reserved. 3.The facts of the case are that M/s. Spic Ltd., Chennai had imported two consignments of machinery under Bills of Entry dated 4-3-1991 and 8-8-1990. Though the importer had declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 794 (Tri.-Del.)]. In the first case, the Hon'ble High Court had held that in order to obtain refund under the Central Excise Act, against claims that were pending at the time of pronouncement of the judgment by the Apex Court in the Mafatlal Industries Ltd. case, the claimants were required to file fresh claims within 60 days of the pronouncement of the judgment. The appellants had failed to do so in the Kerala State Electricity Board case. In the case of ONGC, the Tribunal had decided that any refund pursuant to Order-in-Appeal could not be allowed suo motu by the department without formal application. 5.The Counsel for the appellants argued that once the appellants had received favourable orders from the Commissioner (Appeals), the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed. In the case law relied on by the lower appellate authority, no refund claims had been filed as prescribed under Section 11B of the Central Excise Act. 8.Learned SDR highlights the ratio of the Kerala High Court's decision in Kerala State Electricity Board case (supra) and the Tribunal decision in the ONGC case both of which had been relied upon by the lower appellate authority. According to her, as per the ratio of these decisions, to be eligible for refund pursuant to a favourable Order-in-Appeal, the refund claim should be filed within the time limit prescribed in the Act (Section 11B of the Central Excise Act in both the cases) after the order. She submitted that the ratio of Triveni Sheet Glass Works Ltd. was not relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 of the Customs Act in the Mafatlal Industries Ltd. case (supra). 10.In Para 100 of the Mafatlal Industries Ltd. judgment, the Supreme Court had directed that in respect of claims which had been pending in suits/writ appeals, the concerned petitioners should file refund claims within 60 days of pronouncement of the judgment in that case. In the instant case, the appellants had received favourable orders vide Orders-in-Appeal dated 14-6-93 and 30-10-96. Subject claims had not been pending in any proceeding before any court at the time when the Hon'ble Supreme Court pronounced the judgment. What the Hon'ble Supreme Court ordered in Para 100 extracted above is in respect of claims involved in pending Writ petitions/Writ appeals/suits. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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