TMI Blog2004 (4) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... 66 the Central Excise, Batanagar wrote to the appellant that the subject item did not attract excise duty. 6.On the basis of such communication the respondent made application for refund of the duty paid by them during the period April 24, 1962 to June 17, 1966 made under protest. The concerned authority allowed part of the claim which was made for the period after September 26, 1963. However, the period prior thereto was rejected by the concerned authority. As per the order passed by the concerned authority since the Central Board of Revenue decided the issue and communicated their decision by their letter dated September 26, 1963 the respondent was entitled to refund of the amount paid after September 26, 1963 and not before that. 7.Being aggrieved by the decision of the Excise Authority in rejecting part of the claim the instant writ petition was filed by the respondent. The subject writ petition was heard and disposed of by the learned single judge on July 23, 1979. 8.Before the learned Single Judge it was contended on behalf of the Revenue that the alleged claim of the writ petitioner was barred by limitation under Rule 11 of the Central Excise Rules. It was also contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue of limitation Mr. Khaitan contended that the particular rule had no application in the instant case as neither the duty was paid under a misconception or under error or by mistake. It was really in the nature of a compulsive payment made by the respondent-company at the instance of the Revenue. It was the Revenue who discovered their mistake and thereby asked the respondent-company to make application for refund and as such the period of limitation prescribed under Rule 11 had no application in the instant case. He also contended that the Rule 11 specified a period of three months which was also extended for the self-removal assessee for one year under Rule 173J. In this regard he referred two Apex Court decisions in the cases of India Cements Ltd. v. Collector of Central Excise reported in 1989 (41) E.L.T. 358 (S.C.) and Collector of Central Excise v. Dhiren Chemical Industries reported in 2002 (139) E.L.T. 3 (S.C.). He also referred to the Constitution Bench judgment in the case of Mafatlal Industries Limited as well as the decision of the Special Bench Tribunal in the case of Phosphate Co. Ltd. v. Collector of Central Excise reported in 1987 (31) E.L.T. 599 which was ul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee nor there had been any misconception on their part. This was purely a compulsive mode of recovery by the Revenue on the basis of misconception of the Revenue authorities which was clarified by the Central Board of Revenue as referred to above. Hence, Rule 11 in our view had no application. The learned Judge held so and we are in totally agreement with the learned Judge on that score. It was also contended that there was no provision for payment under protest at the relevant point of time which was subsequently modified. Since we have just now held that it was neither payment under mistake or misconception nor under any error committed by the assessee as it was recovered by the Revenue under their misconception, contention that the Rule 11 did not contemplate any payment under protest is an argument without any logic. On this aspect Mr. Khaitan relied upon various Apex Court judgments as referred to above. He also referred to the decision of the Special Bench Tribunal of CEGAT in the matter of Phosphate Co. Ltd. (supra). In the said case the Tribunal held that in the case of a payment under protest the period of limitation would not be applicable. The decision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enrichment would become applicable in the instant case. The relevant extract of the decision of the Apex Court in the case of Mafatlal Industries Ltd. (supra) is quoted below :- "99 (i) . (ii) . A claim for refund, whether made under(iii) the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
