Full Judgment Text
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PETITIONER:
ASSISTANT COLLECTOR OF CUSTOMS & ORS.
Vs.
RESPONDENT:
ANAM ELECTRICAL MANUFACTURING CO. ETC.
DATE OF JUDGMENT: 28/01/1997
BENCH:
B.P. JEEVAN REDDY, K. VENKATASWAMI
ACT:
HEADNOTE:
JUDGMENT:
THE 28TH DAY OF JANUARY, 1997
Present:
Hon‘ble Mr. Justice B.P. Jeevan Reddy
Hon‘ble Mr. Justice K. Venkataswami
K.N. Bhat, Additional Solicitor General, G. Prakash, C.V.
Subba Rao, Advs. with him for the appellants
D. Ramakrishna Reddy, A.V.V. Nair, S.K. Mehta, Advs. for the
Respondents
O R D E R
The following Order of the Court was delivered:
O R D E R
Heard the counsel for the parties.
So far as the question of levy of surcharge of ten
percent which is in issue herein is concerned, we affirm the
judgment and order of the Madras High Court. So far as the
question of refund is concerned, it is obvious that it shall
be governed by the law declared in Mafatlal Industries v.
Union of India [1996 (9) SCALE 457], read with clause (6) of
the format order, a copy of which is enclosed herewith,
which is as follow:
"Where a refund application or an
appeal is preferred under and in
accordance with the directions (1),
(2) (3) and (4) above, the same
shall be entertained only if the
applicant for refund/appellant
files affidavit stating that he has
not passed on the burden of the
duty, which is claimed by way of
refund, to another person. In case
the applicant for refund is a
company or a society, the affidavit
shall be sworn by the Managing
Director or the Principal Officer
of the Company or the Society, s
the case may be. Such an affidavit
shall be treated as an
averment/assertion which an
applicant for refund has to make in
terms of the judgment in Mafatlal.
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The appeals are disposed of in the above terms. No
costs.
F O R M A T
Pursuant to the directions given in Mafatlal Industries
v. Union of India [ 1996 (9) SCALE 457 ], the
appeals/Special Leave Petitions coming up for disposal shall
be disposed of in terms of one or the other of the clauses
below:
(1) Where a refund application was filed by the
manufacturer/purchaser beyond the period prescribed by the
Central Excise Act/Customs Act in that behalf, such petition
must be held to be untenable in law. Even if in any appeal,
suit or writ petition, direction has been given that the
refund application shall be considered without reference to
the period of limitation prescribed in the Central Excise
Act/Customs Act- or that the period of limitation shall be
taken as three years- such a direction of the Appellate
Court/Civil Court/High Court shall be deemed to be
unsustainable in law and such direction shall be set aside.
The period prescribed by the central excise Act/Customs Act
for filing a refund application in the case of "illegal
levy" cannot be extended by any authority or court.
(2) where, however, a refund application was filed
within the period prescribed by the Central Excise
Act/Customs Act but has been dismissed wholly or partly on
any ground and the said order is questioned by way of a wit
petition or a suit or any appeal arising therefrom the
manufacturer/purchaser shall be entitled to withdraw the
writ petition, suit or an appeal arising therefrom, as the
case may be, and file an appeal before the appropriate
appellate authority within sixty days from today. It is
clarified herewith that even in a case where such writ
petition has been allowed and an appeal filed by the revenue
is pending , the writ petitioner shall be entitled to
withdraw the writ petition, in which event, the revenue
appeal shall be disposed of permitting the writ petitioner
to withdraw the writ petition to pursue the remedy proposed
hereby. If such an appeal is filed, it shall be entertained
without raising an objection on the ground of limitation and
shall be dealt with in accordance with law. This direction
shall apply even in cases where the High Court or Civil
Court is approached after exhausting the remedy of appeal to
Collector [Appeals]. He can file an appeal to C.E.G.A.T.
within sixty days from today, after withdrawing the writ
petition or the suit, as the case may be.
(3) where, however, a writ petition or suit claiming
refund was filed directly in the High Court/Civil Court
[i.e., without filing a refund application ]. the
petitioner/plaintiff shall be entitled to withdraw such writ
petition/suit or any appeal arising therefrom and prefer a
refund claim under Section 11(B) within sixty days from
today provided the writ petition or suit was filed within
the period prescribed by the Central Excise Act/Customs Act
for filing the refund application. It is clarified herewith
that even in a case where such writ petition has been
allowed and appeal filed by the Revenue is pending, the writ
petitioner shall be entitled to withdraw the writ petition,
in which event, the Revenue appeal shall be disposed of
permitted the writ petitioner to withdraw the writ petition
to pursue the remedy proposed hereby.
(4) The above rules, however, do not apply in the case
of a claim for refund of duty levied and recovered under an
unconstitutional provision. In such a case, the period of
limitation shall be prescribed in Mafatlal Industries. The
duty to allege and prove that the duty has not been passed
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on to another person, or course, remains even in such a
case.
(5) where a person challenges the constitutionality of
a provision in the Central Excise Act/Customs Act in a High
Court or the Supreme Court but fails in his challenge to
constitutionality, he cannot take advantage of the decision
in the case of another person striking down the said
provision, as explained in the judgment. This rule is
evolved in the particular context of refund claims under
these two enactments and has to be observed.
(6) where a refund application or an appeal is
preferred under and in accordance with the directions (1),
(2), (3) and (4) above the same shall be entertained only if
the applicant for refund/appellant files affidavit stating
that he has not passed on the burden of the duty, which is
claimed by way of refund, to another person. In case the
applicant for refund is company or a society, the affidavit
shall be sworn by the Managing Director or the Principal
Officer of the Company or the Society, as the case may be.
Such an affidavit shall be treated as an averment/assertion
which an applicant for refund has to make in terms of the
judgment i Mafatlal.
(7) (a) Where the refund claim is rejected by this
Court, the assessee who has already obtained any amount by
way of refund shall be liable to pay back the same to the
department and the department shall be entitled to recover
the same in accordance with law.
(b) If the refund claim is rejected by an authority
under the Act and where the assessee has already obtained
the refund he shall be liable to pay back the said amount to
the department according to law and the department shall be
entitled to recover back the said amount, subject to orders,
if any, by and Appellate Authority.