TMI Blog2017 (5) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... was rendered on 16.6.2016 is subsequent to the passing of the order-in-original dated 28.4.2015, and therefore, was not available at the time when the order-in-original came to be passed - It would, therefore, be in the interest of justice if the matter is restored to the file of the appellate authority to consider the appeal afresh in the light of the observations made in the above referred decision. Appeal allowed by way of remand. - Special Civil Application No. 18787 of 2016 - - - Dated:- 15-3-2017 - Harsha Devani And A. S. Supehia, JJ. Mr Anand Nainawati, Advocate for the Petitioner Ms Avani S Mehta, Advocate for the Respondent JUDGMENT ( Per : Honourable Ms. Justice Harsha Devani ) 1. By this petition under Article 226 of the Constitution of India, the petitioners have challenged the order-in-original dated 28.4.2015 passed by the third respondent to the extent the third respondent has rejected the refund claim of ₹ 14,92,44,294/- as time-barred and has ordered the remaining refund amount of ₹ 4,22,67,238/- to be credited to the Consumer Welfare Fund, as well as the order-in-appeal dated 29.6.2016 passed by the second respondent uphold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collected by the Department of Revenue in terms of those Acts. 5. It is the case of the petitioners that since OID Cess is levied under an Act administered by the Ministry of Petroleum Natural Gas and collected by the Department of Revenue, Ministry of Finance, in terms of the above circular, they are not liable to pay Education Cess and SHE Cess on the OID Cess levied on crude oil. The petitioners, therefore, filed a refund claim vide letter dated 5.2.2014 claiming refund of ₹ 18,77,08,118/- paid towards Education Cess and SHE Cess calculated and paid on the OID Cess levied on crude oil for the period from March, 2005 to January, 2014. The refund claim was subsequently revised to ₹ 19,15,11,532/- vide letter dated 21.4.2014. Along with the refund claim, the petitioners also filed certain documents. Vide letter dated 24.2.2014, the Superintendent of Central Excise sought additional documents from the petitioners which were provided by the petitioners with letter dated 21.4.2014. Subsequent thereto, a show cause notice dated 27.7.2014 came to be issued to the petitioners proposing to reject the refund claim filed by the petitioners. In response thereto, the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has paid duty for the relevant period, which was deemed to be final assessment and has attained finality. It was submitted that after a period of about nine years, the assessment, which has attained finality, cannot be re-opened and refund cannot be claimed except in a case where the investigation, audit or inquiry in pursuance of the demand of such duty is pending. The assessment having attained finality, at this belated stage, the petitioner is not entitled seek reopening of such assessment by claiming refund. It was urged that having regard to the facts and circumstances of the case, there is no infirmity in the impugned orders and hence, the petition deserves to be dismissed. 8. For the purpose of appreciating the controversy in issue, it may be apposite to refer to the decision of this court in the case of Joshi Technologies International, INC-India Projects v. Union of India (supra), wherein this court has held thus: 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 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the facts of the present case, the refund is claimed on the ground that the amount was paid under a mistake of law and such claim being outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. The petitioner was, therefore, justified in filing the present petition before this court against the order passed by the adjudicating authority rejecting its claim for refund of the amount paid under a mistake. 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 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 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied with the Chartered Accountants certificate and the other material produced by the petitioner, he could have called upon the petitioner to produce further documentary 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 petitioners claim is hit by unjust enrichment cannot be legally sustained. 9. From the facts as emerging from the record, it is evident that the above decision would be squarely applicable to the facts of the present case. It is, however, an admitted position that the above referred decision of this court which was rendered on 16.6.2016 is subsequent to the passing of the order-in-original dated 28.4.2015, and therefore, was not available at the time when the order-in-original came to be passed. It appears that the order in appeal having been made on 29.6.2016, soon after the judgement and order dated 16.6.2016 came to be passed, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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