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2016 (6) TMI 773 - GUJARAT HIGH COURT

2016 (6) TMI 773 - GUJARAT HIGH COURT - 2016 (339) E.L.T. 21 (Guj.) - Refund of Education Cess and Secondary and Higher Secondary Education Cess inadvertently paid on cesses - Whether Crude Oil Cess is in the nature of excise duty - Applicability of provisions of section 11B of the CE Act - Period of limitation - Held that:- Crude Oil Cess is not in the nature of excise duty and consequently, the Education Cess and Secondary and Higher Secondary Education Cess computed thereon, also does not bea .....

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ernative remedy suggested by the respondents cannot be said to be an efficacious remedy inasmuch as the amount paid by way of mistake is neither a duty of excise nor is it Crude Oil Cess to which the provisions of the OID Act apply, and consequently, the machinery provisions under the Central Excise Act, 1944 would not apply to refund of such amount. - Refund allowed - Decided in favor of petitioner. - Interest on delayed refund - Held that:- Insofar as the claim of interest is concerned, t .....

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equently, the provisions of section 11BB of the Central Excise Act, which provides for interest on delayed refund, would also not be applicable. - It is settled legal position that in the absence of a statutory provision entitling the assessee to interest, a mandamus cannot be issued to the revenue to pay interest. Though the petitioner has claimed interest at the rate of 18%, the same is not backed by any statutory provision and hence, the relief prayed for in the petition to that extent ca .....

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on of crude oil falling under Chapter Heading 27090000 of the Central Excise Tariff Act, 1985. The petitioner is paying cess on the clearance of petroleum / crude oil under the provisions of section 15 of the Oil Industry (Development) Act, 1974 (hereinafter referred to as the OID Act ). The petitioner entered into Production Sharing Contract with the Ministry of Petroleum and Natural Gas, Government of India for Dholka and Wavel fields for the purpose of carrying out exploration and production .....

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, then, supplies the crude oil to the buyer/IOCL. 2. The petitioner, at the end of the month, after receiving the crude receipt from ONGC, raises a tax invoice on IOCL containing the details of the quantity of crude oil supplied by ONGC and also charges Gujarat Value Added Tax (hereinafter referred to as the GVAT ) on the value of crude oil indicated in such tax invoices. After supplying crude oil to ONGC, the petitioner has paid Petroleum/Crude Oil Cess in terms of the provisions of section 15 .....

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d 07.01.2014 clarifying that the Education Cess and Secondary and Higher Secondary Education Cess are not to be calculated on cesses which are levied under the Acts administered by Department/Ministries other than Ministry of Finance (Department of Revenue) in terms of those Acts. In view of the above, the petitioner filed a letter dated 17.07.2014 requesting for refund of the amount of ₹ 73,60,061/- of Education Cess and Secondary and Higher Secondary Education Cess inadvertently paid by .....

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/- filed by it should not be rejected under the provisions of section 11B of the Central Excise Act, 1944 (hereinafter referred to as the Central Excise Act ). It is the case of the petitioner that it was granted personal hearing on 17.11.2014 and its authorized representative appeared before the second respondent and also submitted written submission dated 13.11.2014. During the course of personal hearing, it was submitted by the petitioner that the refund application for Education Cess and Sec .....

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ven to understand that the documents submitted by it for unjust enrichment are sufficient and the second respondent did not ask for any additional documents on the aspect of unjust enrichment in any of the communications. However, a certificate from IOCL had been submitted to the effect that IOCL does not pay Education Cess and Secondary and Higher Secondary Education Cess to the petitioner. It is the case of the petitioner that without considering the submissions advanced on behalf of the petit .....

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d of ₹ 73,60,061/- along with interest at the rate of 18% per annum claimed vide application dated 21.07.2014. 3. Mr. Sujit Ghosh, learned advocate for the petitioner vehemently assailed the impugned order by submitting that the same is non est, void and ex-facie erroneous and bad in law. It was submitted that the second respondent has invoked the provisions of section 11B of the CE Act which is not applicable in the facts of the present case. It was submitted that the impugned order passe .....

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pointed out that the levy of duty of excise as a cess on removal or transfer of crude oil is provided under the OID Act which is administered by the Ministry of Petroleum and Natural Gas, Government of India. Also, the power to levy cess on crude oil is with the Ministry of Petroleum and Natural Gas and not with Ministry of Finance. It was submitted that the cess on crude oil is neither levied under the Central Excise Act, nor by the Ministry of Finance, Government of India. 3.1 The attention o .....

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he Ministry of Petroleum and Natural Gas and is neither levied under the Central Excise Act, 1944 nor levied by the Ministry of Finance (Department of Revenue) but under the OID Act. It was submitted that the petroleum / crude oil cess stands levied by virtue of section 15 of the OID Act and the same is merely collected as excise duty by the Ministry of Finance (Department of Revenue). It was submitted that the education cess is to be collected on the aggregate dues of excise duty levied and col .....

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ty of excise, the latter should be leviable and recoverable by the Central Government in the Ministry of Finance. However, as Crude Oil Cess is not levied by the Ministry of Finance, Education Cess cannot be levied on the same. 3.2 In support of his submissions, the learned counsel placed reliance upon the decision of this court in the case of Commissioner v. Sahakari Khand Udyog Mandli Ltd., 2011 (263) ELT 34 (Guj.) wherein, the court in the context of the Sugar Cess Act, 1982 which contained s .....

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ation of education cess on the amount of cess so collected. The court held that the sugar cess levied and collected cannot be equated with duty of central excise and therefore, cannot be treated to be part and parcel of the amount on which the education cess has to be calculated. It was submitted that the above decision was squarely applicable to the facts of the present case and that the second respondent, in gross violation of the judicial discipline, has ignored the said order. 3.3 It was sub .....

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ude oil cess as a cess which is different from the central excise duty, the second respondent is not justified in holding that the same is in the nature of central excise duty and hence, amenable to education cess. 3.4 It was further submitted that the refund claimed under section 11B of the CE Act is limited for the purpose of claiming refund of any duty of excise and interest, if any, paid thereon. It was submitted that crude oil cess paid by the petitioner is not in the nature of duty of exci .....

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(301) ELT 446 (Guj.), for the proposition that it is now well settled law that a citizen, even after making payment of tax on demand by either misinterpretation of the statutory provision or under unconstitutional provision or under mistake of law, can subsequently challenge the inherent lack of jurisdiction on the part of the State authority to demand tax, and if such a citizen succeeds, the court can, in an appropriate case, direct refund of the amount which had been collected by the State au .....

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2013 (296) ELT 321 (Guj.), was cited for the proposition that a deposit of amount paid under a mistake does not amount to deposit of excise duty and was a pure mistaken deposit of an amount with the Government which the revenue cannot retain or withhold. Such claim, therefore, would not fall within the ambit of section 11B of the Act. It was, accordingly, urged that since the provisions of section 11B of the CE Act are not applicable to the facts of the present case, the question of unjust enric .....

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l cess is payable or otherwise. The minutes of the meeting of the said conference has been circulated vide F.No.96/79/2014- CX1(Pt.11) dated 09.02.2015 wherein it is admitted at point No.1-9 of Annexure-A (page.08) that the Oil Cess is administered under Act administered by different ministries, it was further clarified that no cesses are leviable on oil cess. In light of this clarification, the instant issue may be considered as settled and no further demand notices may be required to be issued .....

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at the cess paid by the petitioner does not fall within the scope or ambit of sub-section (1) thereof. Reference was made to rule 2(e) of the Central Excise Rules, 2002, which defines duty to mean duty payable under section 3 of the Central Excise Act, to submit that the cess paid by the petitioner is not a duty payable under section 3 of the Central Excise Act and hence is not a duty within the meaning of such expression as envisaged under rule 2(e) of the rules. It was submitted that for the p .....

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consequences of a mistake, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or mistake or could, with reasonable diligence, have discovered it. It was submitted that thus, in case where the amount is paid under a mistake, the limitation is three years from the date of discovery of such mistake. It was submitted that the petitioner came to know about its mistake only after issuance of the CBEC circular dated 07.01.2014 and hence, the limit .....

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e of Rajasthan v. Hindustan Copper Ltd., (1998) 9 SCC 708. It was, accordingly, urged that the impugned order being contrary to the statutory provisions and therefore, bad in law, deserves to be quashed and set aside and that the petition deserves to be allowed by directing the respondents to forthwith sanction and grant the petitioner refund of ₹ 73,60,061/- as sought for vide application dated 21.07.2014. 4. Vehemently opposing the petition, Mr. R. J. Oza, Senior Advocate and learned Sen .....

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on all the points that are raised by the petitioner before this court, this court should not exercise writ jurisdiction and render an opinion on the correctness of the order of the adjudicating authority. It was submitted that against the impugned order, the petitioner has an alternative efficacious remedy under the provisions of the CE Act and hence, on this ground alone, the petition is required to be dismissed. Reliance was placed upon the decision of the Supreme Court in the case of CIT v. C .....

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High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. It was submitted that the present case does not fall within any of exceptions carved out in the above decision and hence, the present petition is not maintai .....

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hat the incidence of duty had not been passed by it to any other person, the refund claim was squarely hit by unjust enrichment in view of the provisions of section 12B of the Central Excise Act. In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. v. CCE & Customs, (2005) 3 SCC 738, for the proposition that the doctrine of unjust enrichment is based on equity and has been accepted and applie .....

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relief of refund, it is necessary for the petitioner-appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss. It was submitted that for the purpose of examining whether or not there was unjust enrichment, this court would have to enter into disputed questions of fact, which it would not entertain in exercise of its writ jurisdiction. 4.2 It was further submitted that the claim .....

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ion would run from the date when the mistake came to the notice of the petitioner, the learned counsel submitted that in the facts of the present case, there is no mistake of law, inasmuch as, a trade notice was issued way back in the year 2004, despite which, the petitioner went on making payment and did not make any application within the period prescribed under section 11B of the Central Excise Act and that such payment was made without any demur. It was submitted that accordingly, the provis .....

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hree years for filing a suit would apply. 4.3 Reliance was also placed upon the decision of the Supreme Court in the case of Paros Electronics (P) Ltd. v. Union of India, 1996 (83) ELT 261 (SC) wherein, the court observed that in the proceedings which emanated for levy of duty the order became final and without having that order set aside by a competent court there would be no question of grant of refund merely on the ground that in some other case a different view was taken, even if the payment .....

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nt. Such assessment has become final and the petitioner has not challenged the same. It was submitted that no refund claim can be filed directly on the basis of CBEC circular dated 07.01.2014 before the pending assessment is finalized. Accordingly, for claiming any refund for the period from July 2004 to April 2014, on the basis of the CBEC circular dated 07.01.2014, the essential pre-condition is to first finalize the pending assessment, only then the question of any refund would arise. In the .....

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the petitioner. 4.4 Reliance was also placed upon the decision of the Supreme Court in the case of Suganmal v. State of M. P., AIR 1965 SC 1740, for the proposition that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a re .....

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it was submitted that the conduct of the petitioner is required to be noted. The petitioner went on depositing money since 2004 to 2014. It is the say of the petitioner that its case does not fall under section 11B of the Central Excise Act despite which, it opted for adjudication and received an order and has, thereafter, filed the present petition. It was submitted that if the petitioner bona fide wanted to contend that section 11B of the Central Excise Act was not applicable, it could have d .....

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joinder, Mr. Ghosh, learned counsel for the petitioner submitted that there is a clear distinction between a trade notice and a circular. It was submitted that the circular dated 07.01.2014 has been issued presumably under section 37B of the Central Excise Act in the year 2014 to remove doubts, whereas the trade notice has been issued by the Commissioners of different Zones. Under the circumstances, merely because the trade notice was issued at some point of time, does not mean that the petition .....

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as submitted that under section 35 of the Central Excise Act, a decision rendered by the authority has to be under that Act, whereas in the facts of the present case, the dispute does not relate to any decision under the provisions of the CE Act and hence, the remedy under section 35 of the CE Act, cannot be said to be an efficacious alternative remedy. 5.1 On the question of the claim of the petitioner being barred by limitation, the learned counsel placed reliance upon the decision of the Supr .....

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party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or delay. It was submitted that in the facts of the present case, .....

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d in an application under Article 226 of the Constitution the court has power to direct the refund unless there have been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such nature for which there is no probable explanation or which will cause any injury either to the respondent or any third party. 5.2 It was submitted that in the present case, there was no assessment to begin and that mere payment of tax cannot be said to be an .....

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mstances, there was no question of any unjust enrichment in the facts of the present case. 5.4 In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Competent Authority v. Barangore Jute Factory, (2005) 13 SCC 477. Reliance was also placed upon the decision of the Delhi High Court in the case of Hind Agro Industries Limited v. Commissioner of Customs, 2008 (221) ELT 336 (Del.), for the proposition that the custom authorities were .....

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n made well within the period of three years after discovery of mistake by the appellants therein, were not barred by limitation. It was submitted that the above decision would be squarely applicable to the facts of the present case. 5.5 Reliance was also placed upon the decision of this court in the case of Swastik Sanitarywares Ltd. v. Union of India, 2013 (296) ELT 321 (Guj.), wherein the court found that the second deposit of the same amount on clearance of the same goods did not amount to d .....

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ch an amount. The court was of the opinion that allowing the respondents to retain such amount would be highly inequitable. Reliance was also placed upon the decision of the Supreme Court in the case of U.P. Pollution Control Board v. Kanoria Industrial Ltd., (2001) 2 SCC 549, for the proposition that a tax or money realised without authority of law is bad under Article 265 of the Constitution and that the money or tax so collected is refundable. The court held that the decision of the Supreme C .....

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llected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. 5.6 Reliance was also placed upon the decision of this court in the case of Gujarat Insecticides Ltd. v. Union of India, 2005 (183) ELT 9 (Guj), wherein the court observed that the amount had been retained by the respondent authorities without any justifiable reason, and ordered the same to be refunded to the petitioner immediately with interest @ 8% p.a. Reliance .....

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t. The court found no reason to doubt the correctness of the aforesaid statement contained in the said affidavit and held that no case was made out for interference with the direction issued by the High Court regarding refund of excise duty paid by the respondent on import of rectified spirit used in the manufacture of copper. 5.7 On the question of existence of an alternative remedy, the learned counsel placed reliance upon the decision of the Kerala High Court in the case of Geojit BNP Paribas .....

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bitrarily withheld without any justification in law as the refund claimed by the petitioner was not relatable to section 11B of the C.E. Act. 5.8 It was, accordingly, urged that there being no efficacious alternative remedy available to the petitioner, the petitioner has rightly availed of the remedy under Article 226 of the Constitution of India before this court. 6. This court has considered the submissions advanced by the learned counsel for the respective parties and has perused the impugned .....

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of principles of natural justice. In this regard, it is the case of the petitioner that it had paid education cess under a mistake of law. By the circular dated 7th January, 2014, the Central Board of Customs and Excise, has pursuant to representations received from trade and field formations seeking clarification as to whether the Education Cess chargeable under section 93(1) of the Finance Act, 2004 and the Secondary and Higher Secondary Education Cess chargeable under section 138(1) of the F .....

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reated as a duty which is both levied and collected by the Department of Revenue. It has been reiterated that the Education Cess and the Secondary and Higher Secondary Education Cess are not to be calculated on cesses which are levied under Acts administered by Department/Ministries other than Ministry of Finance (Department of Revenue) but are only collected by the Department of Revenue in terms of those Acts. 7.1 It is the case of the petitioner that in view of the above clarification, it real .....

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to pay the same. On a plain reading of the circular dated 7th January, 2014, it is evident that the issue was not free from doubt and, therefore, representations were made by the trade as well as field formations, pursuant to which such doubt was cleared. Since Oil Cess is not administered by the Department of Revenue, the petitioner came to know that it was not required to pay Education Cess and Secondary and Higher Secondary Education Cess only when the position was clarified by the above cir .....

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the notifications issued by the Central Government from time to time under the provisions of the OID Act shows that, undoubtedly, it is the Ministry of Petroleum and Natural Gas which is administering the cess levied under that Act. Clearly therefore, the cess levied under the OID Act which is not administered by Ministry of Finance (Department of Revenue) but only collected by the Department of Revenue under the provisions of that Act, cannot, in view of the clarification issued by the CBEC be .....

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refunds and exemptions from duties shall, as far as may be, apply in relation to the levy and collection of duties of excise leviable under that section and for this purpose the provisions of that Act (CE Act) shall have effect as if that Act provided for levy of duties of excise on all items specified in the Schedule. Oil cess is nothing but excise duty on which Education Cess and Secondary and Higher Secondary Education Cess has been paid in terms of the provisions of Finance Acts 2004 and 200 .....

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for the purposes of levy and collection of Education Cess and Secondary and Higher Secondary Education Cess under the provisions of Finance Acts, 2004 and 2007 respectively, and that the circular dated 07.01.2014 is not applicable to the facts of the present case. 8.3 Insofar as the finding that the Oil Cess is nothing but excise duty is concerned, it may be germane to refer to the decision of this court in the case of Commissioner v. Sahakari Khand Udyog Mandli Ltd. (supra) wherein the court i .....

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on in the Official Gazette, specify from time to time. (2) The duty of excise levied under sub-section (1) shall be in addition to the duty of excise leviable on sugar under the Central Excise Act, 1944 (1 of 1944), or any other law for the time being in force. (3) The duty of excise levied under sub-section (1) shall be payable by the occupier of the sugar factory in which sugar is produced. (4) The provisions of the Central Excise Act, 1944 (1 of 1944), and the rules made thereunder, including .....

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sition of cess and it is specifically provided that There shall be levied and collected as a cess . Meaning thereby, the levy and collection is of a cess for the purposes of the Sugar Development Fund Act, 1982. Thereafter, the provision goes on to state, what should be the rate at which the cess is to be levied and for sake of convenience, the same is described as duty of excise. In the event it was a central excise duty, as contended, the rate would have been provided in the Tariff Act and not .....

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at for the purposes of levy and collection of the cess levied under sub-section (1) of Section 3 of the Cess Act, the procedural provisions relatable to levy and collection of the duty of excise, provisions relating to refund and exemption from duty, etc., are made applicable by invoking principle of incorporation. In other words, instead of bodily repeating the provisions of levy and collection of cess by this provision, the provisions under the Central Excise Act and the Rules thereunder have .....

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es that the proceeds of the duty of excise levied under Section 3 (sugar cess) shall be credited to the Consolidated Fund of India. For the purposes of utilization of the said fund, one has to consider provisions of Sugar Development Fund Act, 1982 simultaneously to ascertain as to whether the sugar cess is in fact and in law only a cess or is a duty of central excise. 9. Under the Sugar Development Fund Act, 1982, fund means sugar development fund formed under Section 3 of the said Act, Under s .....

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irst instance, credited to the Consolidated Fund of India and thereafter, by due appropriation made by the parliament by law credited to the sugar development fund. 10. For the present, it is not necessary to consider other provisions of the Sugar Development Fund Act, 1982 relating to application of the sugar development fund etc. Suffice it to state that the Cess Act and the Sugar Development Fund Act both have been brought on the statute book simultaneously on the same day and operate as a co .....

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ons of the OID Act, section 15 and 16 thereof which are more or less in pari materia with sections 3 and 4 of the Sugar Cess Act respectively, read thus: 15. Duties of excise.-(1) There shall be levied and collected, as a cess for the purposes of this Act, on every item specified in column 2 of the Schedule, which is produced in India (including the continental shelf thereof) and- (a) removed to a refinery or factory; or (b) transferred by the person by whom such item is produced to another pers .....

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2) Every duty of excise leviable under sub-section (1) on any item shall be payable by the person by whom such item is produced, and in the case of crude oil, the duty of excise shall be collected on the quantity received in a refinery. (3) The duties of excise under sub-section (1) on the items specified in the Schedule shall be in addition to any cess or duty leviable on those items under any other law for the time being in force. (4) The provisions of the Central Excises and Salt Act, 1944 (1 .....

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ction 15 shall first be credited to the Consolidated Fund of India and the Central Government may, if Parliament by appropriation made by law in this behalf, so provides, pay to the Board from time to time, from out of such proceeds, after deducting the expenses of collection, such sums of money as it may think fit for being utilised exclusively for the purposes of this Act. 8.5 Thus, under sub-section (1) of section 15 of the OID Act, what is levied is a cess for the purpose of the OID Act. The .....

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ision, the provisions of the Central Excise Act, 1944 and the rules framed thereunder have been incorporated and are to be read as part and parcel of the OID Act. Merely because the provisions of the Central Excise Act, 1944 and the rules framed thereunder for collection and refund viz., the machinery provisions have been incorporated in the OID Act for collection and refund of the cess levied thereunder, it cannot be inferred that the Oil Cess imposed under the provisions of the OID Act assumes .....

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nder the Tea Act, 1953 etc., relates only to the Sugar Cess and Tea Cess levied under the said Acts is concerned, in the opinion of this court, such finding is based upon a complete misreading of the said circular, inasmuch as, the adjudicating authority has completely ignored the fact that the words Sugar Cess levied under the Sugar Cess Act, 1982, Tea Cess levied under Tea Act, 1953 are followed by the expression etc. . Therefore, it is evident that the sugar cess and tea cess levied under the .....

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y rejecting the application made by the petitioner seeking refund of the Education Cess Secondary and Higher Secondary Education Cess erroneously paid by it, and hence, the next question that arises for consideration is as to whether the petitioner was liable to pay Education Cess and Secondary and Higher Secondary Education Cess. Education Cess has been levied under section 93 of the Finance Act 2004 and Secondary and Higher Secondary Education Cess has been levied under section 138 of the Fina .....

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of excise (including special duty of excise or any other duty of excise but [excluding Education Cess, and Secondary and Higher Education Cess levied under Section 136 of the Finance Act, 2007] on excisable goods) which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue), under the provisions of the Central Excise Act, 1944 (1 of 1944) or under any other law for the time being in force. (2) The Education Cess on excisable goods shall be in additi .....

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f the duties of excise on such goods under the Central Excise Act, 1944 or the rules, as the case may be. 138. Secondary and Higher Education Cess on excisable goods.-(1) The Secondary and Higher Education Cess levied under Section 136, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Secondary and Higher Education Cess on excisable goods), a .....

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for the time being in force. (2) The Secondary and Higher Education Cess on excisable goods shall be in addition to any other duties of excise chargeable on such goods, under the Central Excise Act, 1944 (1 of 1944) or any other law for the time being in force and the Education Cess chargeable under Section 93 of the Finance (No. 2) Act, 2004 (23 of 2004). (3) The provisions of the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refunds and exempt .....

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of two percent, calculated on the aggregate of all duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess, and Secondary and Higher Secondary Education Cess levied under section 136 of the Finance Act, 2007 on excisable goods) which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue), under the provisions of the Central Excise Act, 1944 or under any other law for the time being in force. Thus, .....

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nd Higher Secondary Education Cess being a cess levied at a percentage of the aggregate of all duties of excise, the basic requirement for levy thereof is the existence of excise duty. In the present case, as noted hereinabove, oil cess is not a duty of excise, under the circumstances, the basic requirement of levy of such cesses is not satisfied. Furthermore, for the purpose of levy of Education Cess and Secondary and Higher Secondary Education Cess, two other conditions precedent, are required .....

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cted by the Central Government in the Ministry of Finance (Department of Revenue); however, the first condition with regard to levy of such duty of excise by the Central Government in the Ministry of Finance (Department of Revenue) is not satisfied inasmuch as the oil cess under the OID Act is levied by the Ministry of Petroleum and Natural Gas. In the aforesaid premises, the requirements of section 93 of the Finance Act, 2004 and section 138 of the Finance Act, 2007 are not satisfied in the pre .....

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ities, the petitioner was wholly justified in making the application for the refund to the second respondent. However, merely because the application is made to an authority under the Central Excise Act, the same would not lead to an inference that the application has been made under the provisions of the Central Excise Act, 1944 so as to make the provisions of appeal, etc. applicable. In the present case, there was no liability to pay Education Cess or Secondary and Higher Secondary Education C .....

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uty of excise and would merely be an amount deposited by the petitioner under a mistake of law. Under the circumstances, the provisions of the CE Act would not be applicable when the petitioner seeks refund of such amount. 11.1 At this juncture, it may be apposite to refer to the decision of the Supreme Court in U.P. Pollution Control Board v. Kanoria Industrial Ltd. (supra), wherein it has been held thus: 9. In H.M.M. Ltd. v. Administrator, Bangalore City Corpn., 1997 (91) ELT 27 (SC), it is he .....

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ey without the authority of law is bad under Article 265 of the Constitution. Octroi cannot be levied or collected in respect of goods which are not used or consumed or sold within the municipal limits. So these amounts become collection without the authority of law. The respondent is a statutory authority in the present case. It has no right to retain the amount, so far and so much. These are refundable within the period of limitation. There is no question of limitation. There is no dispute as .....

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Ltd. v. Union of India, 1997 (89) ELT 247 (SC). That was a case where refund was claimed on the ground that tax/duty had been collected by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 and the Rules and Regulations or the notifications issued under such enactments. In such cases claims for refund had to be preferred under, and in accordance with, the provisions of the respective enactments b .....

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cised to effectuate the rule of law and not to abrogate it. In the present cases there is no corresponding section to Section 11-B of the Central Excises and Salt Act, 1944 for making claim for refund of money and, therefore, the respondents could maintain the writ petitions under Article 226 of the Constitution. Further in para 108( i i ) of the judgment it is held that where, however, a refund is claimed on the ground that the provisions of the Act under which it was levied is or has been held .....

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cise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax . Again in AIR para 9, the Court held: We, therefore, hold that normally petitions solely praying for the refund of money against the State b .....

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w that levy and collection of tax/cess as unconstitutional or without the authority of law. It is one thing to say that the High Court has no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, in the cases on hand where facts are not in dispute, collection of money as cess was itself wit .....

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collection of cess, levy or tax is held to be unconstitutional or invalid, the refund should necessarily follow. We wish to add that even in cases where collection of cess, levy or tax is held to be unconstitutional or invalid, refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case. [Emphasis supplied] 11.2 Reference may also be made to the decision of the Delhi High Court in Hind Agro Industries Limited v. Commissioner o .....

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Industries the Hon ble Supreme Court had only talked of refund of duty payable within the meaning of either the Central Excises and Salt Act, 1944 ( Excise Act ) or the Customs Act, 1962, as the case may be. In other words when the Hon ble Supreme Court said that all claims for refund ought to be filed only in accordance with the Customs Act or Excise Act, it obviously did not include payment made under some enactment, which for some reason, had erroneously been made to the Customs authorities. .....

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efund is sought of a duty levied and recovered under an unconstitutional provision. It was explained that the period of limitation in such cases would be in terms of the law laid down in Mafatlal Industries. It is obvious that when the Hon ble Supreme Court talked of duty levied and recovered under an unconstitutional provision the reference was not to a duty of customs or excise. Therefore, to rely upon either Mafatlal Industries or Anam Electrical Manufacturing Co. to deny the claim of the App .....

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hat Act. In the circumstances, the period of limitation under Section 27 of the Act would not apply, as explained in Salonah Tea Company Limited. The applications for refund having been made well within the period of three years after discovery of mistake by the Appellants, are not barred by limitation. Question (a) in para 7 above is accordingly answered in favour of the Appellants. Consequently, the need to answer question (b) does not arise. (Emphasis supplied) 11.3 In the light of the princi .....

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d of the amount paid under a mistake. 12. Since it has been contended on behalf of the revenue that the application for refund ought to have been made under section 11B of the Central Excise Act, 1944, reference may be made to the said section which reads thus: 11-B. Claim for refund of duty.-(1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expi .....

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has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act: Provided further that the limitation of one year shall not apply where any duty has been paid under protest. 12.1 Thus, section 11B of the Central Excise Act applies to the claim for r .....

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he present case, since Oil Cess is not a duty of excise, the amount paid by the petitioner by way of Education Cess and Secondary and Higher Secondary Education Cess, cannot in any manner be said to be a duty of excise inasmuch as what was paid by the petitioner was not a duty of excise calculated on the aggregate of all the duties of excise as envisaged in the said provisions. Thus, the amount paid by the petitioner would not take the character of Education Cess and Secondary and Higher Seconda .....

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nactment, can be made either by way of suit or by way of writ petition. In the present case, though the provision under which the amount was paid was not declared unconstitutional, it has been declared that the same applies only in cases where the duty is both, administered and collected, by the Department of Revenue, whereas in the present case, the Oil Cess, though collected by the Department of Revenue is administered by the Ministry of Petroleum and Natural Gas. The petitioner was therefore, .....

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before the expiry of one year from the relevant date. The expression relevant date is defined under clause (B) of the Explanation to section 11B of CE Act and insofar as the present case is concerned would be the date of payment of duty. However, as discussed hereinabove, the provisions of section 11B of the Act would not apply to the claim of refund made by the petitioner. Consequently, the limitation prescribed under the said provision would also not be applicable. 14. It has been further cont .....

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n support of the above submission, on behalf of the petitioner, reliance has been placed on the following decisions: 14.1 The decision of the Supreme Court in Dehri Rohtas Light Rly. Co. Ltd. v. District Board, Bhojpur (supra), was cited, wherein it has been held thus: 12. The question thus for consideration is whether the appellant should be deprived of the relief on account of the laches and delay. It is true that the appellant could have even when instituting the suit agitated the question of .....

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not raising the question of legality in the earlier proceedings. It appears that the authorities proceeded under a mistake of law as to the nature of the claim. The appellant did not include the earlier demand in the writ petition because the suit to enforce the agreement limiting the liability was pending in appeal, but the appellant did attempt to raise the question in the appeal itself. However, the Court declined to entertain the additional ground as it was beyond the scope of the suit. Ther .....

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s own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ cou .....

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nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed. (Emphasis supplied) 14.2 Relia .....

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sofar as the Act is concerned, for refund of duty, the provision is contained in Section 11B. However, merely because there is no specific statutory provision pertaining to return of amount deposited under a mistake, per se, in our opinion, should not deter us from directing the respondents to return such amount. Admittedly, there is no prohibition under the Act from returning such an amount. Allowing the respondents to retain such amount would be, in our opinion, highly inequitable. We may not .....

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ended that the error was noticed by them some time in October, 2003 whereupon immediately on 1-11-2003, such refund claim was filed. 17. In a recent judgment in case of C.C. Patel & Associates Pvt. Ltd. (supra), this court had occasion to deal with somewhat similar situation where the petitioner had deposited service tax twice which was not being refunded by the Department. In that context, it was observed as under:- (12) We fail to see how the department can withhold such refund. We say so .....

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(3) of section 68 thus provided for an outer limit of 75 days, but never provided that the same cannot be paid by the 15th of the month following the end of the month when such service was provided. Thus, if the petitioner deposited such duty with the Government during a particular quarter on the basis of billing without actual collection, he had discharged his liability under sub-section (3) of section 68. Thereafter, on an artificial basis, the Assessing Officer could not have held that he oug .....

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h tax had to be deposited in the later quarter but was deposited earlier. Any such action would be without authority of law. Further, before raising demand of ₹ 1,19,465/- under the head of duty short paid, the Assessing Officer should have granted adjustment of the duty already paid by the petitioner towards the same liability. (14) Under the circumstances, we are of the opinion that the department cannot withhold such amount which the petitioner rightfully claimed. Under the circumstance .....

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der Section 23 of the Act, it was provided that the Commissioner shall, in the prescribed manner refund to a producer or a dealer any sum paid or realised in excess of the sum due from him under this Act either by cash or, at the option of the producer or dealer, be set off against the sum due from him in respect of any other period. Section 23 applies only in a case where money is paid under the Act. If there is no provision for realisation of the money under the Act, the act of payment was ult .....

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triable issue like that of limitation. We agree that normally in a case where tax or money has been realised without the authority of law, the same should be refunded and in an application under Article 226 of the Constitution the court has power to direct the refund unless there have been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such nature for which there is no probable explanation or which will cause any injury either t .....

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ecided by the High Court in 1973 that the appellant became aware of his crystal right of having the assessment declared ultra vires and in that view of the matter in October 1973 when the judgment was delivered in July 1973 the appellant came to know that there is mistake in paying the tax and the appellant was entitled to refund of the amount paid. That was the time when the appellant came to know of it. Within a month in November 1973 the present petition was filed. There was no unexplained de .....

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hat the view of the High Court in this matter cannot be sustained. 20. In State of M.P. v. Bhailal Bhai, AIR 1964 SC 1006, this Court had occasion to consider what was unreasonable delay in moving the court when tax was paid under a mistake. There the respondents were dealers in tobacco in the State of Madhya Bharat. The State had imposed sales tax on the sale of imported tobacco by the respondents. But no such tax was imposed on the sale of indigenous tobacco. The respondents filed writ petitio .....

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pecial provision under Article 304(a) of the Constitution and the High Court had no power to direct refund of tax already paid and in any event the High Court should not exercise its discretionary power of issuing a writ of mandamus directing this to be done since there was unreasonable delay in filing the petition. The High Court rejected all the contentions of the appellant and a writ of mandamus was issued as prayed for. It was held that tax was violative under Article 301 of the Constitution .....

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law under Section 72 of the Indian Contract Act. The High Courts had power for the purpose of enforcement of fundamental rights and statutory rights to grant consequential reliefs by ordering repayment of money realised by the government without the authority of law. It was reiterated that as a general rule if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by the extraordinary remedy of mandamus. Even if there is no such delay, in cases where the opp .....

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h delay in seeking remedy under Article 226 could be measured. The court might consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy. Where the delay is more than that period it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act was three years from the date when the mistake was known. In this case know .....

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td. v. Superintendent of Taxes, Nowgong (supra), in case where money is paid by mistake, the period of limitation prescribed is three years from the date when the mistake was known. Besides, section 17 of the Limitation Act inter alia provides that when a suit or application is for relief from the consequences of a mistake, the period of limitation would not begin to run until the plaintiff or applicant has discovered the mistake, or could, with reasonable diligence, have discovered it. Therefor .....

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ced earlier, the petitioner had all along, right from July 2004 been paying Education Cess and subsequently, from the year 2007 was paying Secondary and Higher Secondary Education Cess, till April 2014. It was only when the Circular dated 07.01.2014 came to be issued by the CBEC, clarifying the issue, that the petitioner came to know about its mistake. Considering the nature of the mistake and the fact that the issue was not free from doubt till the above circular came to be issued by the CBEC, .....

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stake, the application made by the petitioner was well within the prescribed period of limitation. Moreover, as discussed hereinabove, the retention of the Education Cess and Secondary and Higher Secondary Education Cess by the respondents is without authority of law and hence, in the light of the decision of this court in Swastik Sanitarywares Ltd. v. Union of India (supra), the question of applying the limitation prescribed under section 11B of the CE Act would not arise. 15. One of the conten .....

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on reliance has been placed upon the decision of the Supreme Court in Paros Electronics (P) Ltd. v. Union of India, 1995 Supp (3) SCC 578 1996 (83) ELT 261 (SC), wherein it has been held as follows: 2. We have heard learned counsel for the appellants and we do not see any infirmity in the order made by the authority rejecting the application. In the first place, in the proceedings which emanated for levy of duty the order became final and without having that order set aside by a competen .....

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on. 15.1 The contention that the Education Cess and Secondary and Higher Secondary Education Cess having been paid by way of self assessment is not by way of a mistake, is thoroughly misconceived. The fact that despite there being no liability on the part of the petitioner to pay Education Cess and Secondary and Higher Secondary Education Cess, it has paid the same from July 2004 to April 2014, on the face of its shows that the same was by way of a mistake. As regards the contention that the sel .....

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ion of any refund would arise. On verification of records, it is observed that the claimant has already self-assessed and paid the duty under rule 6 of the CER 2002 for the period July 2004 to April 2014 which is deemed to be final assessment. Hence the question of finalisation of the same does not arise. For the purpose of claiming any refund on the basis of CBEC circular the assessment is supposed to be pending whereas in the present case the self assessment is deemed to be final assessment an .....

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wherein the court has held thus: 35. What then is the effect of the failure to make an order of assessment after the earlier assessment made is set aside or nullified in appropriate proceedings? If the Assessing Authority cannot make a fresh assessment in accordance with the provisions of the Act it amounts to deemed acceptance of the return of income furnished by the assessee. In such a case the Assessing Authority is denuded of its authority to verify the correctness and completeness of the re .....

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amount since a fresh assessment is barred. In other words, the tax paid by the assessee must be accepted as it is, and in the event of the tax paid being in excess of the tax liability duly computed on the basis of return furnished and the rates applicable, the excess shall be refunded to the assessee, since its retention may offend Article 265 of the Constitution. 36. We cannot lose sight of the fact that the failure or inability of the Revenue to frame a fresh assessment should not place the a .....

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ed calculating the refund. Similarly, if he has by mistake or inadvertence or on account of ignorance, included in his income any amount which is exempted from payment of income tax, or is not income within the contemplation of law, he may likewise bring this to the notice of the Assessing Authority, which if satisfied, may grant him relief and refund the tax paid in excess, if any. Such matters can be brought to the notice of the authority concerned in a case when refund is due and payable, and .....

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ged under Section 237 of the Act. The authority concerned, for the limited purpose of calculating the amount to be refunded under Section 240 of the Act, may take all such facts into consideration and calculate the amount to be refunded. So viewed, an assessee will not be placed in a more disadvantageous position than what he would have been, had an assessment been made in accordance with law. 15.3 Though the above decision has been rendered in the context of the Income Tax Act, 1961, two princi .....

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assessment there would not be any assessment order which can be challenged before the higher forum. Therefore, the contention that the self assessment made by the petitioner has attained finality and hence, the petitioner cannot claim refund unless the assessment is challenged is misconceived and contrary to the law laid down in the above decision. The upshot of the above discussion is that even in case where any amount is paid by way of self assessment, in the event any amount has been paid by .....

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condary and Higher Secondary Education Cess collected from the petitioner is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the respondents have no authority to retain the same. The decision of the Supreme Court in the case of Paros Electronics (P) Ltd. v. Union of India (supra) would have no applicability to the facts of the present case, inasmuch as, in that case the refund was not granted as the levy had become final being contested at all de .....

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g payment of tax on demand by either misinterpretation of the statutory provision or under unconstitutional provision or under mistake of law, can subsequently challenge the inherent lack of jurisdiction on the part of the said State authority to demand tax, and if such a citizen succeeds, the Court can, in an appropriate case, direct refund of the amount which had been collected by the state authority having no jurisdiction. There are instances where after payment of tax by an assessee, on his .....

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ties i.e. the consumers. [See Mafatlal Industries Ltd. and Others v. Union of India and Others reported in (1997) 5 SCC 536 = 1997 (89) E.L.T . 247 (S.C.)]. Thus, if the Constitution does not permit an authority to collect tax by enactment of appropriate law vesting such power, merely because such authority has recovered the amount by virtue of ultra vires adjudication, cannot be a factor standing in the way of the assessee to challenge the provisions as ultra vires just as in a Civil Litigation .....

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ust enrichment. The adjudicating authority has held that the petitioner was required to file the refund claim under the provisions of section 11B of the Central Excise Act, 1944 along with the documentary evidences as provided under section 12A. According to the adjudicating authority, two basic requirements are to be complied with based on documentary evidences (i) the amount of duty, in relation to which the refund is claimed, is paid by the claimant and (ii) the incidence of such duty has not .....

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1944 as the claimant has passed on the incidence of duty to any other person. In this regard, it may be germane to refer to paragraph 19.19 of the impugned order wherein the adjudicating authority has recorded thus: 19.19 The claimant vide letter F. No.JTI/2014- 15/Excise/416 dated 20.11.2014 (received in the office on 21.11.2014)has also submitted a certificate dated 20.11.2014 signed by N. M. Bhalerao, Senior Finance Manager of M/s Indian Oil Corporation Ltd. (IOCL) to an effect that M/s India .....

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& Higher Education Cess on OID Cess. This certificate should not be used other than the intended purpose, without obtaining written permission from them . This certificate has been issued by the customer (M/s IOCL), on the request of the claimant and it has been mentioned that it should not be used anywhere else, without their prior written permission. Hence, this certificate is merely statement without being backed by any supporting documents on the basis of which the veracity of the conten .....

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it may be germane to refer to the decision of the Kerala High Court in Cadbury India Ltd. v. Union of India, 2015 (315) ELT 488 (Ker.), on which reliance has been placed by the learned counsel for the petitioner, wherein it has been held thus: 3. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I am of the view that in Ext. P10 order, the 3rd respondent rejects the refund claim preferred by the petitioner for the sole reason that the pet .....

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he petitioner for refund cannot be entertained. While preferring a claim for refund, it is for the claimant to establish through proper documents that the burden, of the amount claimed by way of refund, has not been passed on to any third person through any subsequent transaction of the claimant. While a certificate issued by a Chartered Accountant or a Cost Accountant would normally suffice to discharge that burden, if the revenue authorities have any doubt with regard to the genuineness of the .....

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, on the 3rd respondent entertaining a doubt regarding the correctness of the said certificate. I am of the view that if the 3rd respondent had any doubt regarding either the genuineness of the certificate or the correctness of the contents therein, it should have informed the petitioner of the same and given the petitioner an opportunity of producing additional documents to substantiate his claim for refund. That procedure not having been adopted by the 3rd respondent, I am of the view that Ext .....

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three months from the date of receipt of a copy of this judgment, after hearing the petitioner, for which due notice shall be given to the petitioner. 16.2 Adverting to the facts of the present case, it is the specific case of the petitioner as averred in paragraphs 5.12 and 5.13 of the memorandum of petition that during the course of personal hearing the petitioner was given to understand that the documents submitted by the petitioner for unjust enrichment are sufficient. It is the case of the .....

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y evidence in support of its claim that it had not passed on the incidence of duty to the purchaser. However, without affording a reasonable opportunity to the petitioner to produce documentary evidence in support of its claim that there was no unjust enrichment, the adjudicating authority was not justified in holding that there was unjust enrichment. Therefore, the finding that the petitioner s claim is hit by unjust enrichment cannot be legally sustained. 17. The next question that would there .....

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ls of quantity of crude oil transferred to IOCL by ONGC along with GVAT charged on the sales price of crude oil supplied. It is further the case of the petitioner that it does not charge any excise duty or crude oil cess to IOCL in the said invoices and that it is also not recovering the said crude oil cess from IOCL in any other form or through any other mode. It is also the case of the petitioner that the sales price of crude oil is derived independently based on price of Dubai crude oil price .....

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nal Inc. and not with the IOCL. Hence reference to clause 15 thereof by the adjudicating authority is misconceived. Insofar as IOCL is concerned there is a Crude Offtake and Sales Agreement and the price at which crude oil is sold is in terms of Article 13 thereof, which is the price clause. For the sake of convenience Article 13 is reproduced hereunder. ARTICLE 13 - PRICE: [13.1] Initially the contractor shall be paid by IOC a provisional price based on calendar month average FOB selling price .....

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Crude Assessment in Platts Crude Oil Marketwire for each day of the month during which the delivery was made to Buyer. B = the number of day s during the relevant month given in A on which Brent (DTD) price was published in Platts Crude Oil Marketwire. The calculation of the price shall be rounded to three (3) places with 0.0005 and below being rounded down and above 0.0005 to be rounded up. [13.3] Adjustment, if any, will be carried out for the difference of final pricing basis arrived at in ac .....

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out prejudice to any other right of recovery available to IOC, IOC may adjust any differential payment, which it is entitled to from the price payable against future delivery of the crude oil by and/or on behalf of the Contractor. [13.4] Payments to Indian Parties will be made in Indian Rupees. For conversion of foreign currency to Indian Rupees, TT Buying Rate as taken by State Bank of India on the date of payment will be applied. [13.5] The parties shall meet annually or sooner upon notice ser .....

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ner s invoices and also on the contractual clauses contained in the Crude Offtake and Sales Agreement as well as a copy of a letter dated 29th July, 2015 issued by Shri N.M. Bhalerao, Chief Finance Manager, IOCL, wherein the certificate dated 20th November, 2014, issued earlier by IOCL has been explained and it has been stated that the price paid to the petitioner by IOCL was solely dependent upon the daily mean values of high and low quotations of Brent under the heading viz. Spot Crude Oil Ass .....

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ndary and Higher Education Cess on such OID Cess to the petitioner. It is further stated that their statement that the certificate dated 20th November, 2014, was issued by them at the request of the petitioner is factually correct. It has been stated that IOCL would never had an occasion to issue such a certificate on its own, unless called for by another party which seeks such certificate. Hence, their obligation to issue such a certificate arises only if such a request is made to them. Referen .....

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uty to any consumer of the final product, viz., copper, manufactured by the respondent. It has been stated in the said affidavit that the price of copper has always been fixed by the Mineral & Metal Trading Corporation (MMTC) on the basis of the prevailing price fixed by the London Metal Exchange (LME) and this was done not only for the period in question but also for prior and subsequent period and that only such price could be charged and that no part of the duty in respect of rectified sp .....

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eals are, therefore, dismissed. No order as to costs. 17.3 In the opinion of this court having regard to the price clause contained in the Crude Offtake and Sales Agreement and the certificate of the Chartered Accountant and the documents referred to hereinabove, more particularly, the certificate dated 29.07.2015 issued by IOCL, the above decision of the Supreme Court would be squarely applicable to the facts of the present case. Thus, from the certificate issued by the IOCL, it is evident that .....

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y has brushed aside the certificate dated 20.11.2014 issued by the Senior Finance Manager of IOCL merely on the ground that such certificate was issued at the request of the claimant. As has rightly been stated in the above letter dated 29.07.2015, in the ordinary course, the petitioner would not be required to obtain such a certificate and it is only in the peculiar facts of the present case, where it is called upon to prove that it has not passed the incidence of the Education Cess and Seconda .....

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ny unjust enrichment on the part of the petitioner does not arise. 17.4 On behalf of the respondents, reliance has been placed on the decision of the Supreme Court in Sahakari Khand Udyog Mandal Ltd. v. CCE & Customs (supra), wherein it has been held as follows: 25. It was also argued that the authorities below could not have invoked the provisions of Section 11-B of the Act for denial of the benefit of notifications. Section 11-B was inserted in the Act by the Amendment Act of 1978 (Act 25 .....

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o which a person is not otherwise entitled. Section 11-B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in the absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner-appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffe .....

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18. On behalf of the respondent, a contention has been raised as regards the very maintainability of the petition on the ground that there is an efficacious alternative remedy available under section 35 of the Central Excise Act. Since the very existence of an alternative statutory remedy was in dispute, and connected issues were required to be decided for the purpose of deciding this issue, instead of deciding the question of maintainability at the very outset, the same is being decided at this .....

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on-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available .....

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IR 1958 SC 86, and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, AIR 1966 SC 1089, have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the co .....

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order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, AIR 1964 SC 1419, Titaghur Paper Mills, (1983) 2 SCC 433 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance .....

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the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana, (1985) 3 SCC 267, this Court has noticed that if an appeal is from Caesar to Caesar s wife the existence of alternative remedy would be a mirage and an exercise in futility. 18.1 Reliance was also .....

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nd can always be made in a suit against the authority which had illegally collected the money as a tax. We have been referred to cases in which orders had been issued directing the State to refund taxes illegally collected, but all such cases had been those in which the petitions challenged the validity of the assessment and for consequential relief for the return of the tax illegally collected. We have not been referred to any case in which the Courts were moved by a petition under Article 226 .....

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lity or unconstitutionality and therefore could take action under Article 226 for the protection of their fundamental right, and the courts, on setting aside the assessment orders, exercised their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised. We do not find any good reason to extend this principle and therefore hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ord .....

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n. 18.2 On the other hand, it is the case of the petitioner that it has no alternative efficacious remedy but to approach this court since the present case pertains to levy of Education Cess and Secondary and Higher Secondary Education Cess on Oil Cess, which is far removed from the scope of the Central Excise Act which pertains solely to the levy and collection of excise duty. Hence, there is no question of preferring any appeal to the Commissioner (Appeals) under section 35 of the CE Act, sinc .....

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a Pvt. Ltd. v. Union of India, 2015 (326) ELT 532 (Guj), wherein it has been held thus: (A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that - (A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or (A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdicti .....

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judge. 18.3 In the earlier part of the order, this court has held that Crude Oil Cess is not in the nature of excise duty and consequently, the Education Cess and Secondary and Higher Secondary Education Cess computed thereon, also does not bear the character of a duty of excise, but is merely an amount paid under a mistake of law. As a necessary corollary, it follows that the provisions of the Central Excise Act, 1944 would not be applicable for refund of such amount paid by mistake. Moreover, .....

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machinery provisions under the Central Excise Act, 1944 would not apply to refund of such amount. In Geojit BNP Paribas Financial Services Ltd. v. C.C.E., Customs & Sales Tax, Kochi (supra), it was contended on behalf of the Department that the petitioner had an alternative remedy and therefore, the writ petition was not maintainable. The court held thus: 10. The question of alternative remedy would arise if Service Tax is otherwise leviable under the Central Excise Act. Herein, in this case .....

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010) 28 VST 190 (Karn.) = 2010 (17) S.T.R. 6 (Kar.)] and by the Madras High Court in Natraj and Venkat Associates v. Asst. Commr. of S.T., Chennai-II [2010 (249) E.L.T. 337 (Mad.) = 2010 (17) S.T.R. 3 (Mad.)]. The above statement of law would also apply on all fours to the present case. 18.4 In the light of the above discussion, this court is of the view that the contention that the petition is not maintainable in view of there being an alternative statutory remedy of appeal available to the pet .....

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hence the provisions of the Central Excise Act for refund would not be applicable. Consequently, the provisions of section 11BB of the Central Excise Act, which provides for interest on delayed refund, would also not be applicable. It is settled legal position that in the absence of a statutory provision entitling the assessee to interest, a mandamus cannot be issued to the revenue to pay interest. Though the petitioner has claimed interest at the rate of 18%, the same is not backed by any stat .....

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g recorded by the adjudicating authority that the Oil Cess is in the nature of excise duty, is erroneous and contrary to the law laid down by this court in Commissioner v. Sahakari Khand Udyog Mandli Ltd. (supra). - In the Circular dated 7th January, 2014, reference to sugar cess and tea cess levied under the Sugar Cess Act, 1982, and the Tea Act, 1953, respectively, is merely illustrative in nature and what is meant by the circular is that the cesses which are collected by the Department of Rev .....

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cise and hence, the basic requirement of levy of such cesses is not satisfied. Furthermore, for the purpose of levy of Education Cess and Secondary and Higher Secondary Education Cess, two other conditions precedent, are required to be satisfied, viz., (i) that the duty of excise should be levied by the Central Government in the Ministry of Finance (Department of Revenue); and (ii) the duty of excise should be collected by the Central Government in the Ministry of Finance (Department of Revenue) .....

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ss under the OID Act is levied by the Ministry of Petroleum and Natural Gas. In the aforesaid premises, the requirements of section 93 of the Finance Act, 2004 and section 138 of the Finance Act, 2007 are not satisfied in the present case, and consequently, the said provisions have no applicability to the facts of the present case. The petitioner, therefore, cannot be said to have been liable to pay Education Cess and Secondary and Higher Secondary Education Cess under the above provisions. - In .....

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mount paid by the petitioner by way of Education Cess and Secondary and Higher Secondary Education Cess, cannot in any manner be said to be a duty of excise inasmuch as what was paid by the petitioner was not a duty of excise calculated on the aggregate of all the duties of excise as envisaged under the provisions of section 93 of the Finance Act, 2004 and section 138 of the Finance Act, 2007. Thus, the amount paid by the petitioner would not take the character of Education Cess and Secondary an .....

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tioner, the limitation prescribed under the said provision would also not be applicable and the general provisions under the Limitation Act, 1963 would be applicable. Section 17 of the Limitation Act inter alia provides that when a suit or application is for relief from the consequences of a mistake, the period of limitation would not begin to run until the plaintiff or applicant has discovered the mistake, or could, with reasonable diligence, have discovered it. Since the period of limitation b .....

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the CE Act would not arise. - Even in case where any amount is paid by way of self assessment, in the event any amount has been paid by mistake or through ignorance, it is always open to the assessee to bring it to the notice of the authority concerned and claim refund of the amount wrongly paid. The authority concerned is also duty bound to refund such amount as retention of such amount would be hit by Article 265 of the Constitution of India which mandates that no tax shall be levied or collec .....

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umentary evidence in support of its claim that it had not passed on the incidence of duty to the purchaser. However, without affording a reasonable opportunity to the petitioner to produce documentary evidence in support of its claim that there was no unjust enrichment, the adjudicating authority was not justified in holding that there was unjust enrichment. Therefore, the finding that the petitioner s claim is hit by unjust enrichment cannot be legally sustained. - The material on record clearl .....

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ry Education Cess computed thereon, also does not bear the character of a duty of excise, but is merely an amount paid under a mistake of law. As a necessary corollary, it follows that the provisions of the Central Excise Act, 1944 would not be applicable for refund of such amount paid by mistake. Moreover, since there was no liability to pay Education Cess and Secondary and Higher Secondary Education Cess, the provisions of the Central Excise Act as incorporated in the OIC Act would also not ap .....

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