TMI Blog1990 (9) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government exempted the goods falling under Tariff Item 68 which were cleared from the factory of manufacture, for sale, from so much of duty of excise leviable thereon, as is in excess of the duty calculated on the basis of the invoice price charged by the manufacturer for the sale of such goods. To avail of this exemption, the manufacturers were required to file a written declaration to the effect that they were opting to avail of the exemption. The petitioner Company availed of the exemption by writing dated June 19, 1975. The option covered several products like bulk drugs, synthetic vitamin 'A' in various forms, animal feed supplements and food additives and supplements. 2. The products manufactured by the petitioner Company wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77. 4. The Company then carried a Revision Petition before the Central Government and during the pendency of the petition, the Company filed price list in Part IV and paid excise duty on the prices charged by M/s. Voltas Limited to their customers. The duty was paid by the Company under protest and without prejudice to the rights agitated in Revision Petition before the Central Government. The Revision Petition was allowed by Additional Secretary to the Government of India, Ministry of Finance and Department of Revenue by order dated March 5, 1980. The Government of India held that the invoice price to M/s. Voltas Limited should constitute the assessable value under the Central Excise Notification dated April 30, 1975 and the orders of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector held that the refund sought by the petitioner Company is not passed on to the customers and, therefore, the amount of refund should constitute the part of the assessable value under Section 4 of the Central Excises and Salt Act, 1944 and duty of Rs. 6,114.81 and Rs. 2,176.70 is payable on this refund amount and this amount will have to be excluded while awarding the claim of refund. The order of Assistant Collector is under challenge. 6. Shri Nankani, learned counsel appearing on behalf of the petitioner, submitted that the Assistant Collector by the impugned order denied refund of Rs. 2,30,831.39 on entirely unsustainable grounds. We Find considerable merit in the submission of the learned counsel. The first ground for refusin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and the Appellate Authority and were in issue before the revisional authority. The question as regards the assessable value of the goods supplied by the Company to M/s. Voltas Limited was to be determined on resolution of issue as to whether the concept of related person under Section 4 can be imported while payment of duty by claiming the benefit under exemption notification dated April 30, 1975. The revisional authority on principle held that the concept is not permissible and M/s. Voltas Limited cannot be treated as related person. Once, this conclusion is reached, then the consequence must follow and the duty recovered by the Department on an erroneous principle is bound to be refunded to the petitioner Company. The assumption of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 944 was not followed and, therefore, the order of the Assistant Collector is correct. We are unable to find any merit in this submission. The Company had written letter to the Assistant Collector intimating that the duty is paid under protest pending the revision petition and that is more than sufficient compliance with the requirement of Rule 233-B. The Rules are procedural and can by no stretch of imagination be treated as mandatory. Apart from this consideration, the Assistant Collector overlooked that the refund is sought because the superior authority has set aside the orders passed by the lower authorities and the refund sought is in the nature of restitution. The Company paid the duty during the interregnum i.e. while the revision pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. In our judgment, the Assistant Collector was in error in rejecting the claim of Rs. 2,30,831.39 and sanctioning only Rs. 1,11,677.81. 8. Accordingly, petition succeeds and it is declared that the petitioners are entitled to the refund of Rs. 2,30,831.39 in addition to the refund granted by the Assistant Collector. The direction to the Assistant Collector to pay the amount of refund is not required, as by an interim order passed at the stage of admission, the Department was required to deposit the amount in this Court and the petitioner was allowed to withdraw the said amount on furnishing an undertaking to refund, if called upon. The undertaking given by the petitioners stands discharged. In the circumstances of the case, there w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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