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2019 (9) TMI 529

..... t the case of the petitioner that payment towards Excise Duty is in the form of pre-deposit is misconceived. Considering the annexures annexed with the petition i.e. Challans for deposit of Central Excise Duty in Form No.TR-6, that too, without protest is the payment towards the Excise Duty and can never be considered as pre-deposit. If any payment is made as a pre-condition for exercising the statutory right it can be termed as pre-deposit. However,it cannot be equated with voluntary deposit of Excise Duty paid even during the course of investigation and prior to show cause notice or adjudication to assert that it is pre-deposit. The payment of duty was intended to prevent the incidence of interest and liability accruing from the non-payment of duty, and hence, it cannot be termed as deposit. Therefore, the payments made by the petitioner towards Excise Duty in Challans Form No.TR-6, can never partake characteristic of pre-deposit as mentioned in Section 35F of the Act, as argued by learned advocate for the petitioner. The amounts were paid involuntarily and, therefore, are deemed to be under protest and should be considered as deposits deserves to be rejected - Petition dismissed .....

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..... e-deposit ₹ 3,32,076/- and accordingly, the petitioner had deposited the same in Form No.TR-6 Challan on 22.6.2006. In short, according to the petitioner, ₹ 18,32,076/- has been deposited in Government Account through different challans. 2.4 It is further the case of the petitioner that said show cause notice was adjudicated by the Commissioner, Central Excise and Customs vide Order-in-Original No.09/ Commr./VDR/II/MP2006, dated 30.11.2006 against the petitioner. 2.5 The said order was carried in appeal before Customs Excise and Service Tax Appellate Tribunal (for short, CESTAT ), WZB, Ahmedabad, which came to be allowed by an order dated 31.07.2007. 2.6 It is further the case of the petitioner that the Department had challenged the order passed by the CESTAT dated 31.07.2007 before the Hon ble Apex Court and that challenge failed. Not only that review application filed by the department also came to be dismissed. 2.7 Therefore, the petitioner, after receipt of the order of the Hon ble Supreme Court, addressed a letter dated 21.8.2010 to the Divisional Central Excise Authority for claiming refund of ₹ 18,32,076/- on the ground that, it being pre-deposit / deposit .....

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..... tution of India. He has further contended that, any statutory appeal, in the present situation, is only illusory, at this stage, and has no any effective alternative remedy, since after contesting settled and covered issue for so many years, the petitioner has yet been denied justice and fairness. 5. It is further contended by learned advocate for the petitioner that amounts deposited during the course of investigation under coercion and threat of the Preventive Officers of the Central Excise Department, which visited it on 20.9.2005, and thereafter also, is always involuntary in nature and thus, under deemed protest also. It is further submitted that despite the petitioner having pointed out to the Authority that their activities are not manufacturing activities, liable to any excise duty, as per the definition of the Excise Duty contained in Central Excise Rules, 2000 and Section 3 of the Central Excise Act, the petitioner was forced to pay the said amount under TR-6 challans. Therefore, deposits made by the petitioner cannot be considered as voluntary in nature. He has further argued that, as held by almost all High Courts in country and as also, Tribunal, as also Apex Court in .....

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..... V/s. UCAL Fuel Systems Ltd. in 2014 (306) ELT 26 (Mad) (9) CCE Lucknow V/s. Eveready Inds India Ltd in 2017 (357) 11 (All) (10) Estee Auto Pressings P. Ltd. V/s. CC Chennai in 2017 (346) ELT 72 (Mad) (11) CCE Cochin V/s. Transformers & Electricals Kerala in 2017 (346) ELT 59 (Ker) (12) Shreewood Products Pvt. Ltd. V/s. CCE in 2016 (340) ELT 79 (P&H) Technical Decisions on the above point (1) Gujarat Engg Works V/s. CCE Ahmd II in 2013 (292) ELT 547 (Tri Ahmd) following above few High Court decisions. (2) Metro Motors V/s. CCE Daman in 2015 (39) STR 77 (Tri. Ahmd) (3) Metal Plast Exim India Ltd. V/s. CC Kandla in 2012 (280) ELT 120 (Tri Ahmd) On Grant of interest of such deposit. (1) CCE Hyderabad V/s. ITC Ltd. (And many others) in 2005 (179) ELT 15 (SC) for mandatory interest on delay in return of deposits or pre-deposits. CBECC circular on deposits during investigation not to follow S.11B (1) 984/08/2014-CX dated 16.9.2014. 6. As against that, Mr.Nirzar Desai, learned advocate for the respondents submitted that writ petition filed before this Court under Article 226 is not maintainable as equally efficacious statutory remedy available under Section 35G of the Act is not ex .....

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..... Manufacturing Co. reported in 1997 (90) ELT 260 (SC) and contended that refund application filed by the manufacturer beyond the statutory time limit under Section 11B, it must be held to be untenable in law, regardless any direction to the contrary contained in an order in appeal, suit or writ petition. In short, the submission is that the statutory time limit cannot be extended by any authority or Court in case of illegal levy. 9. Mr.Desai, learned advocate has further contended that the amount deposited by the petitioner through challans are paid towards the Central Excise duty liability. Therefore, it has to be refunded, as provided under the Act. In short, the submission on behalf of the Department is that for claiming refund of Excise Duty paid, one has to follow the procedure, as prescribed under Section 11B of the Act, that too, of the duty paid under the protest within the time prescribed therein from the relevant date. According to the Department, the relevant date would be the date 7.8.2007 when the CESTAT (Appellate Tribunal) allowed the appeals filed by the petitioner. Therefore, the refund claim should have been filed by the petitioner by 30th July, 2008, that too, in .....

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..... isfied 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 advance deposits lying in balance in the applicant's current account maintained with the Principal Commissioner of Central Excise or Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty an .....

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..... levant date" means,- (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods,- (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the C .....

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..... quated with voluntary deposit of Excise Duty paid even during the course of investigation and prior to show cause notice or adjudication to assert that it is pre-deposit. The payment of duty was intended to prevent the incidence of interest and liability accruing from the non-payment of duty, and hence, it cannot be termed as deposit. Therefore, the payments made by the petitioner towards Excise Duty in Challans Form No.TR-6, can never partake characteristic of pre-deposit as mentioned in Section 35F of the Act, as argued by learned advocate for the petitioner. Under the circumstances, the contention that the amounts were paid involuntarily and, therefore, are deemed to be under protest and should be considered as deposits deserves to be rejected. Firstly as discussed hereinabove the payments made by the petitioner are in the nature of Central Excise Duty and hence, cannot be considered to be akin to or in the nature of pre-deposit as contemplated under Section 35-F of the Act; and secondly there is nothing on record to establish that the petitioner had paid the amount in question under protest, and hence the second proviso to sub-section (1) of Section 11B of the Act which provide .....

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..... has also vide order dated 13.3.2013 passed Order- in-Appeal No.SRP/542/VDR-II/2013, rejected the appeal preferred by the petitioner and upheld the impugned Order in-Original passed by the Assistant Commissioner on the very same ground. Not deterred by the rejection of appeal by the Appellate Authority, it was carried in appeal before the Appellate Tribunal i.e. CESTAT, West Zonal Bench, Ahmedabad, which also came to be dismissed by an order dated 8.9.2017 in Appeal No.E/11707/2013-SM. 17. The Authority relied on the decision in the case of Mafatlal Industries Ltd. and others (supra) and considering the same rejected the claim. The Constitution Bench of the Supreme Court, in a binding precedent, summarized the proposition of law in para-108, more particularly at proposition no.(i). It is relevant for our purpose, which reads as under; 108...... (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff- whether before the commencement of the Central Excise and Customs Laws (Amendment) Act, 1991 or thereafter- by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tarif .....

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..... ty collected by misinterpreting or misapplying the provisions of the Act or rules or regulations or notifications, issued under the said enactment, the claim for refund has to be necessarily preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. Though, the Constitution Bench of the Supreme Court has held that jurisdiction of the High Court under Article 226 of the Constitution of India or of the Supreme Court under Article 32 cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. In view of Constitution Bench decision on the issue, any other view by any Court, Tribunal, etc. is unsustainable. Therefore, the decisions cited by the learned advocate for the petitioner requires no specific considerations thereof. 19. The Supreme Court in the case of Assistant Collector of Customs V/s. Anam Electrical Manufacturing Co. reported in (1997) 5 SCC 744 = 1997 (90) ELT 2 .....

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..... ance with the Act, as also the aforesaid judgments. 22. In our view, the scope for claim of refund is strictly governed by Section 11B of the Act and though in past, there were some judicial pronouncements widening the scope of claim of refund after Supreme Court elaborated reasonings in the case of Mafatlal (supra), there remains hardly any scope for judicial intervention to enlarge it further than what is permissible. The claim of refund and time limit prescribed, therefore, has an avowed aim of attaching finality to the government receipt. Hence, before making any order or direction, affecting it or seeking any writ resulting in refund, the claimant has to make out an extra ordinary case not covered by the decision of the Supreme Court in the case of Mafatlal (supra). 23. In view of the clear pronouncement of law by the Constitution Bench of the Supreme Court with regard to refund claim, precedents relied on by the petitioner are not applicable as they are not on the issue directly covering the field since the payment is made by the petitioner voluntarily during the course of investigation towards Central Excise Duty, in Form No.TR-6, without any protest and refund claim is also .....

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