TMI Blog2003 (3) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period 1991-1994 were finalised by the respondent by his order dated 29-3-1996/10-5-1996. Respondent allowed deductions claimed in the said order. Respondent also ordered that the jurisdictional Superintendent should finalise the assessment from January 1995 onwards in accordance with the said order. Total amount demanded worked out to Rs. 7,87,26,491. 00. Aggrieved by the same, petitioner filed an appeal before the Commissioner of Customs and Central Excise (Appeals) challenging the rejection of claims made by the petitioner for deduction towards interest on receivables and non-recoverable taxes, such as turnover tax, octroi, etc. Appellate Authority in terms of its order dated 16-9-1997 directed the petitioner to pay a sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of pre-deposit since that was not a payment of excise duty. Respondent by his letter dated 3-5-2000 informed the petitioner that there is no provision of law other than Section 11B of the Central Excise Act under which money could be refunded. It is in these circumstances, petitioner is before me. 3.Notice was issued and the respondent has filed statement of objections. Respondent has referred to various facts and ultimately states that the contention of the petitioner that the pre-deposit is not an excise duty is not correct and that the pre-deposit made by the petitioner as a pre-condition to admit the appeal is nothing but the duty demanded by the adjudicating authority. Except Section 11B there is no provision for refund of money unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have carefully perused the material on record. 6.Section 11B provides for claim for the refund of duty. It provides for an application being made for refund of such duty to the Assistant Collector before expiry of six months. Procedure is prescribed under Section 11B. Facts in the case on hand would show that the petitioner has made over Rs. 7 crores as pre-deposit. After protracted litigation, the authorities have arrived at a figure of Rs. 6,22,89,723.00, leaving behind the surplus of Rs. 77,10,277.00. This is not disputed. Petitioner made refund claim in terms of an application dated 28-3-2000. Instead of considering the same, they have chosen to issue an endorsement and by this endorsement they wanted certain orders/documents to be en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as High Court in somewhat identical circumstances has ordered refund along with 15 per cent interest. It is also to be noticed at this stage that the respondents themselves in the light of dismissal of SLP by the Supreme Court has chosen to issue circular instructions dated 2-1-2002. They have stated that such refund application under Section 11B(1) need not be insisted upon in the light of the judgment of the Supreme Court. In these circumstances, the endorsement at Annexure-H has no legs to stand and the same has to fail in the light of the judgment of the Supreme Court confirming the Bombay High Court judgment. Pre-deposit amount cannot be equated to excise duty as held by the Bombay High Court and confirmed by the Supreme Court. I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petition on 7-8-1996. The Madras High Court has decided the case on 3rd October, 1999 in the identical circumstances. Inspite of these rulings, to my shock and surprise, respondent has chosen to assert the same ground which have been found to be unsustainable by courts of law in identical circumstances, and the apex court has confirmed the finding of the Bombay High Court. In the circumstances, I express my displeasure about the way in which an affidavit is filed in this court in respect of their stand. Such an affidavit as in the case on hand definitely misleads the courts. I deem it proper to deprecate filing of such affidavits particularly in the light of clear rulings of courts of law in identical circumstances. Moreover, the affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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