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Excise duty – Paid under protest on supply of raw material – High court directed to refund the amount – before returning the amount, an enquiry was conducted under wrongful enrichment – the deputy collector was satisfied that there was no wrongful enrichment but refunded the amount with an unnecessary condition linking the matter with another pending pending supreme court – become final as the amount was received under protest giving an undertaking – Apex court held that an unnecessary condition imposed beyond the scope of subject matter though become final, can not be claimed as an instrument to claim for refund the amount paid under a valid order – Apparently the condition is patent error and as such is liable to be set aside – Apex court set aside the order of tribunal and allowed the appeal = INTERNATIONAL CONVEYORS LTD. APPELLANT VERSUS COMMNR. OF CENTRAL EXCISE & CUSTOMS RESPONDENT =2014(Feb.Part) judis.nic.in/supremecourt/filename=41259

Excise duty –  Paid under protest on supply of raw material – High court directed to refund the amount – before returning the amount, an enquiry was conducted under wrongful enrichment – the deputy collector was satisfied that there was no wrongful enrichment but refunded the amount with an unnecessary condition linking the matter with another pending pending supreme court  – become final as the amount was received under protest giving an undertaking – Apex court held that an unnecessary condition imposed beyond the scope of subject matter though become final, can not be claimed as an instrument to claim for refund the amount paid under a valid order – Apparently the condition is patent error and as such is liable to be set aside – Apex court set aside the order of tribunal and allowed the appeal =

 

 It is, however, strange that the Deputy Collector,  Central  Excise

        and Customs, Aurangabad passed the following final order:

                 “I hereby sanction the refund u/s 27 of C.A. –  1962  claim

                 for Rs.17,35,119/- with a condition that the  party  should

                 give an undertaking that they will pay back  money  to  the

                 Government in case Supreme Court decides the SLP No.2332/92

                  U.O.I. Vs. M/s. Solar Pesticides Pvt. Ltd.  in  favour  of

                 the Department.”

 

 

     9. Apparently, there was  no  issue  of  captive  consumption  in  the

        instant case  and  yet  the  appellant  was  directed  to  file  an

        undertaking as stated hereinabove in the order.  

Being in  need  of

        money, the appellant filed an undertaking under protest, though, in

        our opinion, it was not necessary for the Deputy Collector, Central

        Excise and Customs, Aurangabad to ask for such an undertaking.   Be

        that as it may, the said order was not challenged  by  anybody  and

        therefore, it attained finality.=

 

it is an admitted fact that the  amount

        of duty paid by the appellant had never been  passed  over  to  the

        purchasers and the said fact has been duly recorded by  the  Deputy

        Collector, Central Excise and  Customs,  Aurangabad  in  his  order

        dated 5th April, 1995.  

The said order  has  attained  finality  as

        nobody challenged the said order. An undertaking,  though  strictly

        not required to be given, was given by the  appellant  as  demanded

        under the aforestated order dated 5th April,  1995  and  ultimately

        the amount had been refunded to the  appellant.  

In  our  opinion,

        there is no question of demanding the said amount again, especially

        when the facts which had been disputed by the  Revenue  before  the

        Tribunal had already been admitted in  the  proceedings  which  had

        been initiated by the Deputy Collector, Central Excise and Customs,

        Aurangabad in his order dated 5th  April,  1995.   

We  are  not  in

        agreement with the findings arrived at by the  Tribunal  which  are

        contrary to the facts recorded by  the  Deputy  Collector,  Central

        Excise and Customs, Aurangabad.  Unfortunately, the said order  has

        not been referred to at all by the  Tribunal.   

Without  disturbing

        the findings arrived at by the Deputy Collector, Central Excise and

        Customs, Aurangabad in his order dated 5th April, 1995, 

the Revenue

        could not have come to an altogether different conclusion on facts.

         

In our opinion, due efforts were made  to  find  out  whether  the

        amount of duty had been passed over  to  the  purchasers,  who  are

        either government  Companies  or  Corporations  controlled  by  the

        Government.  

It has been clearly stated in  the  aforestated  order

        dated 5th April, 1995 that even the  purchasers  had  admitted  the

        fact that the amount of duty paid by the  appellant  had  not  been

        passed over to the said purchasers or  in  other  words,  the  said

        amount of duty had not been recovered from the said purchasers.

    15. We fail to understand as to how the judgment  delivered  in  U.O.I.

        Vs. M/s. Solar Pesticides Pvt. Ltd. (supra) is  applicable  to  the

        case  of  the  appellant.  Neither  this  is  a  case  of   captive

        consumption nor is a case of unjust enrichment.

    16. For the aforesaid reasons, we quash  and  set  aside  the  impugned

        order passed by the Tribunal dated 6th September, 2004.  The appeal

        is allowed with costs.  Looking at the  hardship  suffered  by  the

        appellant, in our opinion, it would be just and proper to award  an

        amount of Rs.25,000/- as costs and the said amount shall be paid to

        the appellant within three months from the date of  this  order  by

        the respondent authority.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41259

 ANIL R. DAVE, SHIVA KIRTI SINGH
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7895 OF 2004
INTERNATIONAL CONVEYORS LTD. APPELLANT
VERSUS
COMMNR. OF CENTRAL EXCISE & CUSTOMS
RESPONDENT

 
1 J U D G M E N T

 
1 ANIL R. DAVE, J.

 

1. Being aggrieved by the Order No. A/1426/WZB/2004/CI dated 6th
September, 2004 of the Customs, Excise and Service Tax Appellate
Tribunal, West Zone Bench at Bombay in Appeal No.C/560/04, the
appellant has approached this Court by way of this appeal.
2. In our opinion, this case hardly involves any legal issue but we
feel more concerned about the hard luck of the appellant, a
manufacturer of PVC Coal Conveyor Belting made from imported Nylon
Yarn. We do not propose to go into the circumstances in which the
litigation had started but we start from the point which gave rise
to some confusion and as a result thereof the appellant was dragged
to the present litigation.
3. Upon hearing the learned counsel appearing for the parties and on
perusal of the impugned order and other relevant orders, we find
that there was some issue with regard to imposition of duty on
import of Nylon Yarn. It was held by the Central Excise & Gold
(Control) Appellate Tribunal, New Delhi by its order dated 5th
April, 1991 that the case put forward by the appellant with regard
to the classification of the goods imported by it was correct and
the amount which had been demanded by the Revenue, which had been
paid by the appellant under protest should be returned to the
appellant upon production of evidence of end use of the imported
yarn in the manufacturing of belting to the satisfaction of the
concerned Assistant Collector.
4. In pursuance of the above order, the appellant filed a refund claim
along with relevant documents, for Rs.17,35,119/-, the amount which
was paid by way of duty under protest in respect of the nylon yarn
which was imported by the appellant during the period commencing
from February, 1987 to February, 1988.
5. As the amount of refund had not been paid in pursuance of the
refund claim made by the appellant, the appellant was constrained
to file Writ Petition No.5185 of 1993 before the High Court of
Bombay praying for a direction that the aforestated amount be
refunded along with interest thereon to the appellant. The said
petition was allowed and by virtue of an order dated 19th April,
1994, the High Court had directed the Revenue to take appropriate
action for making payment of the refund of Rs.17.35 lacs within
three months from the date of the order to the appellant.
6. After the aforestated order was passed by the High Court, the
Assistant Collector of Central Excise issued a show cause notice
dated 27.04.1994 calling upon the appellant to show cause as to why
the application claiming refund should not be rejected on the
ground of unjust enrichment as the amount of tax was alleged to
have been recovered by the appellant from M/s. Coal India Ltd. and
M/s. Singarani Collieries Co. Ltd., to whom the goods had been
supplied by the appellant.
7. In pursuance of the aforestated show cause notice, the appellant
had given its reply on 9th May, 1994 giving details to the effect
that the amount of duty paid had never been recovered from the
aforestated two units which were substantially controlled by the
Government. Necessary evidence was also adduced and even the
aforestated two units also confirmed the fact that the aforestated
amount of duty paid by the appellant had not been collected from
them. The said reply was duly considered by the Deputy Collector,
Central Excise and Customs, Aurangabad and thereupon he passed a
final order dated 5th April, 1995 whereby he had come to the
following conclusion, as recorded in his order:
“I have gone through the records of the case carefully. As
regards end use of nylon yarn, the jurisdictional range Supdt.
has certified that the raw material i.e. nylon yarn imported
under the said B/E has been used in the manufacture of the
conveyor belting.
As regards unjust enrichment, party submitted that their
contracts were fixed price contract and were without any
escalation clause and were signed even before the dispute arose
about the custom duty. M/s. Singarani Collieries Co. Ltd. and
M/s. Coal India Ltd. have also certified that they have not paid
any extra price due to increase in custom duty. Thus, it emerges
that since duty is paid under protest, therefore, the limitation
u/s 27 of C.A. is not applicable to subject refund claim.
i) The refund claim is admissible on merit;
ii) The refund claim is also admissible on the limitation
period;
iii) Also the excess duty incidence has not been passed on
by the assessee on their buyers.”
The aforestated facts, as recorded by the Deputy Collector, Central
Excise and Customs, Aurangabad clearly reveal that the amount of
duty claimed by way of refund had not been collected by the
appellant from the above named two buyers who had purchased
conveyor belting from the appellant.
8. It is, however, strange that the Deputy Collector, Central Excise
and Customs, Aurangabad passed the following final order:
“I hereby sanction the refund u/s 27 of C.A. – 1962 claim
for Rs.17,35,119/- with a condition that the party should
give an undertaking that they will pay back money to the
Government in case Supreme Court decides the SLP No.2332/92
U.O.I. Vs. M/s. Solar Pesticides Pvt. Ltd. in favour of
the Department.”
9. Apparently, there was no issue of captive consumption in the
instant case and yet the appellant was directed to file an
undertaking as stated hereinabove in the order. Being in need of
money, the appellant filed an undertaking under protest, though, in
our opinion, it was not necessary for the Deputy Collector, Central
Excise and Customs, Aurangabad to ask for such an undertaking. Be
that as it may, the said order was not challenged by anybody and
therefore, it attained finality.
10. Ultimately, this Court decided SLP No.2332/92, Union of India vs.
M/s. Solar Pesticides Pvt. Ltd. and the judgment delivered in the
said case has been reported at page no.705 of 2000 (2) SCC.
11. In our opinion, the aforestated judgment is not at all relevant so
far as the appellant’s case is concerned. However, the learned
counsel appearing for the respondent had made a feeble effort to
correlate the aforestated judgment and the facts of the case of the
appellant. We do not agree with the submissions made by the
learned counsel for the respondent for the reason that Union of
India Vs. M/s. Solar Pesticides Pvt. Ltd. (supra) is a case where
incidence of duty had been passed over to the buyer, whereas in the
instant case it is an admitted fact, even as recorded by the Deputy
Collector, Central Excise and Customs, Aurangabad that the
incidence of duty had not been passed over to the purchaser of the
furnished goods. In spite of the aforestated fact, by a show cause
notice dated 3rd March, 2003 the appellant was called upon to pay
the amount which had been refunded to the appellant in pursuance of
the undertaking filed by the appellant as per order dated 5th
April, 1995 passed by the Deputy Collector, Central Excise and
Customs, Aurangabad. The aforestated show cause notice dated 3rd
March, 2003 was replied to by the appellant on 3rd April, 2003 and
thereupon by an order dated 14th July, 2003 the said show cause
notice had been dropped.
12. The order dated 14th July, 2003, whereby the show cause notice
dated 3rd March, 2003 had been dropped, was taken into review and
by an order dated 31st March, 2004 the said review was allowed and
thereby once again the appellant was asked to pay the amount which
had already been refunded to it.
13. The said order dated 31st March, 2004 was challenged by the
appellant before the Tribunal and the Tribunal was pleased to
dismiss the said appeal and the impugned order of dismissal dated
6th September, 2004 has been challenged by the appellant in this
appeal.
14. Upon hearing the concerned counsel and looking at the facts of the
case, it is very clear that it is an admitted fact that the amount
of duty paid by the appellant had never been passed over to the
purchasers and the said fact has been duly recorded by the Deputy
Collector, Central Excise and Customs, Aurangabad in his order
dated 5th April, 1995. The said order has attained finality as
nobody challenged the said order. An undertaking, though strictly
not required to be given, was given by the appellant as demanded
under the aforestated order dated 5th April, 1995 and ultimately
the amount had been refunded to the appellant. In our opinion,
there is no question of demanding the said amount again, especially
when the facts which had been disputed by the Revenue before the
Tribunal had already been admitted in the proceedings which had
been initiated by the Deputy Collector, Central Excise and Customs,
Aurangabad in his order dated 5th April, 1995. We are not in
agreement with the findings arrived at by the Tribunal which are
contrary to the facts recorded by the Deputy Collector, Central
Excise and Customs, Aurangabad. Unfortunately, the said order has
not been referred to at all by the Tribunal. Without disturbing
the findings arrived at by the Deputy Collector, Central Excise and
Customs, Aurangabad in his order dated 5th April, 1995, the Revenue
could not have come to an altogether different conclusion on facts.
In our opinion, due efforts were made to find out whether the
amount of duty had been passed over to the purchasers, who are
either government Companies or Corporations controlled by the
Government. It has been clearly stated in the aforestated order
dated 5th April, 1995 that even the purchasers had admitted the
fact that the amount of duty paid by the appellant had not been
passed over to the said purchasers or in other words, the said
amount of duty had not been recovered from the said purchasers.
15. We fail to understand as to how the judgment delivered in U.O.I.
Vs. M/s. Solar Pesticides Pvt. Ltd. (supra) is applicable to the
case of the appellant. Neither this is a case of captive
consumption nor is a case of unjust enrichment.
16. For the aforesaid reasons, we quash and set aside the impugned
order passed by the Tribunal dated 6th September, 2004. The appeal
is allowed with costs. Looking at the hardship suffered by the
appellant, in our opinion, it would be just and proper to award an
amount of Rs.25,000/- as costs and the said amount shall be paid to
the appellant within three months from the date of this order by
the respondent authority.

…………………………………………J
.
(ANIL R. DAVE)

 

 

 

………………………………………….J.
(SHIVA KIRTI SINGH)

New Delhi
February 25 , 2014
———————–
12

 

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