TMI Blog2016 (3) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... e the deficiencies in the application within two days and, in any event, if there are still deficiencies, it can proceed with adjudication and reject the application for refund. The adjudicatory process by no stretch of imagination can be carried on beyond three months. It is required to be concluded within three months. The decision in Ranbaxy Laboratories Limited (supra) commends us and we respectfully concur with the same. - Decided against the revenue. - Civil Appeal No. 1666 of 2006 - - - Dated:- 25-2-2016 - Dipak Misra And Shiva Kirti Singh, JJ. For the Appellant : Mr Yashank P Adhyaru, Sr. Adv. Mr Sanjai Kumar Pathak, Adv. Mr. Ritesh Kumar, Adv. Mr B Krishna Prasad, AOR. For the Respondent : Mr S B Upadhyay, Sr. Adv. Ms Pawan Upadhyay, Adv. Ms Anisha Upadhyay, Adv. Ms Param Mishra, Adv. Mr Kaustuv P Pathak, Adv. Mr Sarvjeet P Singh, Adv. Ms Sharmila Upadhyay, AOR Ms Neeru Vaid, Adv JUDGMENT Dipak Misra, J. The respondent, M/s. Hamdard (Waqf) Laboratories, is engaged in the business of manufacture and sale of various items including Rooh Afza which is a sweetened non-alcoholic beverage, and the respondent treated it to have been classified under the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration for a beverage. Were that so, many beverages which are squash would not be beverages [See for example para 5 of this Court's judgment in the case of Parle Exports (P) Ltd. (Northern Industries vs. CCE (1988) 37 ELT 229 (Tribunal) and para 12 et seq. Of the Tribunal's judgment in the case of Northland Industries (From the judgment and order dated 4.5.1995 of the National Consumer Disputes Redressal Commission, New Delhi in F.A. No.65 of 1994]. It seems to us that the phrase preparations for lemonades or other beverages in clause (j) of Note 5 of Chapter 21 was intended to refer to the industrial concentrates from which aerated water and similar drinks are mass produced and not to preparations for domestic use like the said sharbat. 8. It was necessary for the respondents to have shown, having regard to the terminology of Heading 21.07, that the said sharbat was not elsewhere specified or included . That, in our view, was not done. In fact, as we see it, it falls within the terms of Heading 2202.90. At this juncture, it is necessary to state that initially when the judgment was pronounced on 04.08.1999, paragraph 8 mentioned within the terms of heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 5,40,000.00 in PLA vide Entry No.956 dated 26.6.95 under protest, I observed that the contention of the party is tenable as the letter of protest dated 8.9.94 protest all payments made under protest on 8.9.94 and their view finds support in the case of CCE, Meerut vs. Citurgia Biochemical Ltd. 1998 (101) 568 (SC). Even otherwise, I find that the payment of ₹ 54 lacs which was endorsed under protest had been verified and authenticated on the same date i.e. on 26.5.95 by the Range Superintendent and the same is sufficient compliance of Rule 2338. Regarding passing on the duty element to the Customers, I carefully examined the O-I-A 600-CE/ MRT /94 dated 10.01.95 passed by the Commissioner (appeal), Ghaziabad, who had decided in the above O-I-A that the assessable value in relation to any excisable goods, does not include the amount of duty of excise, sales tax and other taxes, if any, payable on such goods. Therefore, in the case for cum duty price, the abatement of excise duty and other taxes is to be allowed for determining the assessable value of the goods for the purpose of levy of excise duty thereon and accordingly passed order that differential duty p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of duty has to be strictly construed and, if there is no compliance with the conditions enumerated therein, the application has to be rejected. Elucidating the said argument, learned senior counsel would submit that if there is a defective application or an application not meeting the requisite criteria stipulated under the statutory provision, it is to be held that there is no application in the eye of law and hence, the period has to commence from the date when the defects are rectified. In essence, the submission is that the prescription of three months in the said provision has to commence when the application is appositely rectified to bring it in order, and there has to be adjudication to arrive at the necessitous conclusions as enshrined in the said provision, otherwise, the persons who are not entitled to get refund would be in a position to avail the benefit of refund and the interest on technical score. To buttress the said submission, he has paid immense stress on the factual matrix. It is urged by him that there was no proper application and, in fact, when the defects were communicated, they were not appositely corrected and things only came to light at the time of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act: Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise]under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. Explanation.- Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or any court against an order of the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or, as the case may be, by the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section. 15. Sub-section (2) of Section 11-B stipulates filing of an application by the assessee before the competent authority. It also postulates that the said authority is required to be satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty is refundable. The application, as submitted by Mr. Adhyaru, has to be an application in law. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciencies therein the additional information/document required within 48 hours of the receipt. In such cases the letter shall be issued only with the approval of a Superintendent and the period of 3 months, for purpose of Section 11-BB shall count from the date of receipt of all the requisite information or documents. (h) The Collector may use a cyclostyled Performa for the purpose of intimating the deficiencies or for acknowledgment of the receipt of the refund application. (I) Check-lists of various documents which should be filed with the refund claims of different types are annexed herewith to be used as guidelines. However, the list may not be treated as exhaustive and any other documents, if required, may be included therein and called from the assessee. 16. Mr. Upadhyay, learned senior counsel has rested his stand on paragraph (g) which provides that where the refund application, is found to be incomplete, a letter shall be issued stating the deficiencies therein within 48 hours. The said circular is issued by the Government of India, Ministry of Finance (Department of Revenue), New Delhi it is binding on the Revenue but the Revenue had not pointed out any d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to be submitted under sub-section (1) of Section 11B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application. The Explanation appearing below Proviso to Section 11BB introduces a deeming fiction that where the order for refund of duty is not made by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise but by an Appellate Authority or the Court, then for the purpose of this Section the order made by such higher Appellate Authority or by the Court shall be deemed to be an order made under sub-section (2) of Section 11B of the Act. It is clear that the Explanation has nothing to do with the postponement of the date from which interest becomes payable under Section 11BB of the Act. 13. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not able to allege and establish that he has not passed on the burden to others, his claim for refund will be rejected whether such a claim is made in a suit or a writ petition. It is a case of balancing public interest vis-a-vis private interest. Where the petitioner- plaintiff has not himself suffered any loss or prejudice (having passed on the burden of the duty to others), there is no justice or equity in refunding the tax (collected) without the authority of law) to him merely because he paid it to the State. It would be a windfall to him. As against it, by refusing refund, the monies would continue to be with the State and available for public purposes. The money really belongs to a third party - neither to the petitioner/plaintiff nor to the State - and to such third party it must go. But where it cannot be so done, it is better that it is retained by the State. By any standard of reasonableness, it is better that it is retained by the State. By any standard of reasonableness, it is difficult to prefer the petitioner-plaintiff over the State. 20. In paragraph 91, this court was dealing with the constitutional validity of Section 11-B. It was contended that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... together indicate that even a claim for refund arising as a result of an appellate or other order of a superior court/authority was within the purview of the said rule though treated differently. The same position continued under Section 11-B, prior to its amendment in 1991. Sub-sections (3) and (4) of this section are in the same terms as sub-rules (3) and (4) of Rule 11; if anything, sub-section (5) was more specific and emphatic. It made the provisions of Section 11-B exhaustive on the question of refund and excluded the jurisdiction of the civil court in respect of all refund claims. Subrule (3) of Rule 11 or sub-section (3) of Section 11-B (prior to 1991) did not say that refund claims arising out of or as a result of the orders of a superior authority or court are outside the purview of Rule 11/Section 11-B. They only dispensed with the requirement of an application by the person concerned which consequentially meant nonapplication of the rule of limitation; otherwise, in all other respects, even such refund claims had to be dealt with under Rule 11/Section 11-B alone. That is the plain meaning of sub-rule (3) of Rule 11 and subsections (3) and (4) of Section 11-B (prior to 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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