Facts of the case
The petitioner company cleared its final product during the period between June, 2002 and September, 2002 on payment of excise duties totalling to Rs. 91,129/-. The petitioners due to a pure clerical error, paid the same amount of duty on same clearances all over again by debiting the amount in the Personal Ledger account.
Realising that the sum of Rs. 91,129/- was paid twice, the petitioners filed a refund claim before respondent No.3 on 1-11-2003.
Refund claim was made beyond a period of one year which was the limitation period prescribed under the law.
we find that the second deposit of the same amount on clearance of the same goods did not amount to deposit of excise duty and was a pure mistaken deposit of an amount with the Government which the revenue cannot retain or withhold. Such claim, therefore, would not fall within section 11B of the Act. It is true that insofar as the Act is concerned, for refund of duty, the provision is contained in section 11B. However, merely because there is no specific statutory provision pertaining to return of amount deposited under a mistake, per se, in our opinion, should not deter us from directing the respondents to return such amount. Admittedly, there is no prohibition under the Act from returning such an amount. Allowing the respondents to retain such amount would be, in our opinion, highly inequitable.
HIGH COURT OF GUJARAT
Swastik Sanitarywares Ltd.
Union of India
Paresh M. Dave for the Appellant. Kalpesh N. Shastri for the Respondent.
Akil Kureshi, J. – The petitioners have challenged an order dated 23-3-2004 passed by the respondent No.3 – Deputy Commissioner of Central Excise. The petition arises in following factual background. The petitioner No.1 is a company registered under the Companies Act. The petitioner No.2 is the office bearer of the company. The company is engaged in the business of manufacture of sanitary wares which are excisable goods. The petitioner company cleared its final product during the period between June, 2002 and September, 2002 on payment of excise duties totalling to Rs. 91,129/-. The petitioners due to a pure clerical error, paid the same amount of duty on same clearances all over again by debiting the amount in the Personal Ledger account.
- Realising that the sum of Rs. 91,129/- was paid twice, the petitioners filed a refund claim before respondent No.3 on 1-11-2003. The respondent No.3, however, prima facie, finding that the refund claim was barred by limitation, issued a show-cause notice dated 9-1-2004 calling upon the petitioners to show cause why the same should not be rejected. It was contended that the refund claim was made beyond a period of one year which was the limitation period prescribed under the law.
- The petitioners filed a detailed reply to the showcause notice under communication dated 10-2-2004. In the reply to the show-cause notice, they elaborated that the amount was paid second time erroneously, the same was, therefore, not excise duty and the revenue should, therefore, in all fairness, refund the same. It was pointed out that the duty in question relates to five consignments exported by the petitioners to Nepal. The total duty of Rs. 91,129/- was paid at the time of export. Second time at the month end of each month of clearance, such duty was paid by making necessary debit entries in the Personal Ledger Account of the petitioner No. 1 company. It was contended that in view of the said facts, the provisions of section 11B of the Central Excise Act, 1944 (‘the Act’, for short) would not apply. It was contended that the Government has no jurisdiction to retain such amount erroneously deposited.
- The adjudicating authority, however, passed impugned order dated 23-3-2004 rejecting the refund claim. In the order, he accepted the petitioners’ contention that the duty was paid twice on the same goods. He recorded as under:
“Next argument of the assessee that duty is paid twice on the same goods and therefore, the claim is admissible, I find that even though the duty payment is not disputed, refund cannot be decided solely on this ground. In fact, time-bar aspect is having an overriding effect even if the refund is admissible on merit.”
Principally on this ground, he rejected the refund claim. The petitioners had referred to a judgment of this court in case of Indo-Nippon Chemicals Co. Ltd. v. Union of India [Special Civil Application No. 1955 of 1999, dated 22-2-2002] to which he recorded that the High Court and the Supreme Court only have power to entertain such a claim. He, however, would not have any jurisdiction to ignore the limitation period provided in section 11B of the Act.
- This order, the petitioners have challenged directly before this court mainly on the ground that there being no disputed questions at all, the petitioners may not be relegated to the alternative remedy of appeals. Such petition was entertained and admitted by this court way back in the year 2004.
- Learned counsel for the petitioners raised following two contentions:-
(1) that the amount paid second time would not take the character of duty. Such amount cannot be retained by the Government. Refund claim, therefore, should have been granted without reference to the period of limitation prescribed under section 11B of the Central Excise Act.
6.1 In support of such contention, counsel referred to the following decisions of the Tribunal opining that when an amount is paid in excess of the customs duty payable, such amount cannot be considered as the customs duty and would not, therefore, fall within the ambit of section 27 of the Customs Act providing for refund of customs duty. In such decisions, it was held that though there was no provision for refunding such amount, there was no provision under the Customs Act for refunding such amount also.
(i) In case of Star Textile Engg. Works Ltd. v. Collector of Customs 1985 (22) ELT 552 (Tri. – Bom.)
(ii) In case of I.T.C. Ltd. v. CC 1999 (113) ELT 213
(iii) In case of Partap Steel Rolling Mills Ltd. v. CC 2006 (200) ELT 255 (Tri – Delhi)
6.2 Counsel also relied on a recent decision of a Division Bench of this court in the case of C.C. Patel & Associates (P.) Ltd. v. Union of India  wherein in the context of refund of service tax wrongly paid to the petitioner therein, this court made certain observations.
(2) Second contention of the petitioners was that the Department cannot withhold such duty which would result into unjust enrichment in favour of the Government. On the principle of restitution and equitable consideration in exercise of writ jurisdiction, this court may also direct refund of such amount by the respondents.
6.3 In this connection, counsel relied on following decisions:-
(1) In case of Indo-Nippon Chemicals Co. Ltd. (supra) wherein the finding that a certain duty was paid under the insistence of the Department under mistaken belief of the Department as well as of the assessee of a certain circular, Division Bench of this court granted refund thereof even beyond the period of limitation.
(2) Our attention was drawn to the decision in the case of Mafatlal Industries Ltd. v. Union of India  5 SCC 536 to contend that since undisputedly the petitioners had not passed on the burden of duty on the ultimate consumer, such claim of refund cannot be turned down on the principle of unjust enrichment.
- On the other hand, learned counsel Shri Shastri opposed the petition contending that the decision of this court in the case of Indo-Nippon Chemicals Co. Ltd. (supra) would not apply. He submitted that the period of limitation prescribed under section 11B of the Act would be applicable. Since admittedly the refund claim was filed after the period of limitation, the same was rightly rejected by the competent authority. He also contended that since statutory appeals are available, this writ petition should not be entertained.
7.1 In support of his contentions, he relied on the following decisions:-
(1) In the case of CC&CE v. Hongo India (P.) Ltd.  5 SCC 791 wherein in the context of limitation prescribed under the Act for filing appeal which is extendable only up to a limited period prescribed, the Apex Court held that the time limit prescribed for making a reference to the High Court is absolute and unextendable and the same cannot be extended referring to section 5 of the Limitation Act, 1963. We, however, fail to see any relevance of this judgment since such a controversy is not arising in the present petition at all.
(2) In case of Paros Electronics (P.) Ltd. v. Union of India  (83) ELT 261 wherein the Apex Court held that a duty which was initially paid without protest, cannot be claimed refund of on the basis of decision taken in case of some other assessee particularly when the order refunding duty had become final.
- The contention of the respondents that due to availability of alternative remedy, this petition should not be entertained needs only a summary disposal. This petition was entertained as far back as in 2004 after bipartite hearing. There are no disputed questions of facts. Availability of appeal otherwise also is not a total bar in entertaining a writ petition. Without any further elaboration, such a contention is, therefore, rejected.
- The facts in the present case are virtually admitted. The petitioners cleared excisable goods on payment of total duty of Rs. 91,128/-. Same duty was paid all over again at the month end when such goods were cleared by making debit entries in the Personal Ledger Account of the petitioners. Break-up of such duty payment second time was as under:-
|PLA Page No.||Entry No. & Date||Invoice No.||Amount debited|
|3||6 dt. 5.6.02||214||Rs.21,419-00|
|4||13 dt. 17.7.02||317||Rs. 4,792-00|
|4||16 dt. 23.7.02||341||Rs.27,209-00|
|4||17 dt. 24.7.03||343||Rs.17,333-06|
|6||32 dt. 30.9.02||531||Rs.20,375-00|
|Total Rs. 91,128-06|
- Thus, the fact that the amount of Rs. 91,129/- was paid twice for the same clearance is not in dispute at all. In fact, in the order-in-original, the adjudicating authority accepted the contention of the petitioners that duty was paid twice on the same goods and that therefore, the claim was admissible. He, however, rejected the claim observing that even though the duty payment is not disputed, refund cannot be decided solely on this ground.
- With respect to the petitioners’ contention that such duty burden was not passed on to the consumer or any other party also, there is no dispute at all. In the show-cause notice that the adjudicating authority issued intending to reject the refund claim, no such allegation was made. The sole basis on which he was prima facie of the opinion that the claim was not maintainable was that the claim was barred by limitation. Even in response to the present petition, the respondents have not taken such a stand in the affidavit-in-reply.
- We, therefore, proceed on two undisputed factual aspects namely, that the excise duty of Rs. 91,128/- was initially paid at the time of clearance, such amount was deposited again under mistake and further that such burden was not passed on to the consumer.
- When the petitioners paid the duty of Rs. 91,128/- at the time of clearance of goods, they discharged their excise duty liability on such clearances. Thereafter, the petitioners had no further excise duty liability on such goods. If by mistake or a pure clerical error or an oversight, the petitioners also thereafter debited the same amount in the Personal Ledger Account and deposited a sum of Rs. 91,128/- all over again, such deposit cannot take the character of duty paid. Such deposit was purely an error and the amount deposited cannot be co-related with the petitioners’ responsibility to discharge excise liability. Such payment of Rs. 91,128/- made second time, therefore, in our opinion, cannot be seen as a duty deposited or paid. Under the circumstances, the claim of the petitioners seeking repayment of such amount cannot be seen as a refund claim made under section 11B of the Act.
- If, for any reason, the petitioners were seeking refund of a duty paid, such claim had to be examined under section 11B of the Act and in such a case, the period of limitation would apply in all its rigour. Neither the departmental authority nor this court in a writ jurisdiction ignore such statutory period of limitation. This position is abundantly clear flowing from the decision in the case of Mafatlal Industries (supra) wherein in the concluding portion of the majority judgment it was held and observed as under:-
- The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment.
(i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff – whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter – by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 – and of this Court under Article 32 – cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it.
- In the present case, however, we find that the second deposit of the same amount on clearance of the same goods did not amount to deposit of excise duty and was a pure mistaken deposit of an amount with the Government which the revenue cannot retain or withhold. Such claim, therefore, would not fall within section 11B of the Act. It is true that insofar as the Act is concerned, for refund of duty, the provision is contained in section 11B. However, merely because there is no specific statutory provision pertaining to return of amount deposited under a mistake, per se, in our opinion, should not deter us from directing the respondents to return such amount. Admittedly, there is no prohibition under the Act from returning such an amount. Allowing the respondents to retain such amount would be, in our opinion, highly inequitable. We may not be seen to suggest that such a claim can be raised at any point of time without any explanation. In a given case, if the petitioner is found to be sleeping over his right, or raises such a claim after unduly long period of time, it may be open for the Government to refuse to return the same and this court in exercise of discretionary writ jurisdiction, may also not compel the Government to do so.
- In the present case, however, no such inordinate delay is pointed out. The petitioners have contended that the error was noticed by them some time in October, 2003 whereupon immediately on 1-11-2003, such refund claim was filed.
- In a recent judgment in case of C.C. Patel & Associates Pvt. Ltd. (supra), this court had occasion to deal with somewhat similar situation where the petitioner had deposited service tax twice which was not being refunded by the Department. In that context, it was observed as under:-
(12) We fail to see how the department can withhold such refund. We say so for several reasons. Firstly, we notice that under sub-section (3) of section 68, the time available to a service provider such as the petitioner for depositing with the Government service tax though not collected from the service recipient was 75 days from the end of the month when such service was provided. This is in contrast to the duty to be deposited by a service provider upon actual collection by the 15th of the month following the end of the month when such duty is collected. Sub-section (3) of section 68 thus provided for an outer limit of 75 days, but never provided that the same cannot be paid by the 15th of the month following the end of the month when such service was provided. Thus, if the petitioner deposited such duty with the Government during a particular quarter on the basis of billing without actual collection, he had discharged his liability under sub-section (3) of section 68. Thereafter, on an artificial basis, the Assessing Officer could not have held that he ought to have deposited same amount once all over again in the following quarter. This is fundamentally flawed logic on the part of the Assessing Officer.
(13) Further, to accept such formula adopted by the Assessing Officer would amount to collecting the tax from the petitioner twice. The petitioner having already paid up the service tax even before collection in a particular quarter, cannot be asked to pay such tax all over again in the following quarter on the same service on the ground that such tax had to be deposited in the later quarter but was deposited earlier. Any such action would be without authority of law. Further, before raising demand of Rs. 1,19,465/- under the head of duty short paid, the Assessing Officer should have granted adjustment of the duty already paid by the petitioner towards the same liability.
(14) Under the circumstances, we are of the opinion that the department cannot withhold such amount which the petitioner rightfully claimed. Under the circumstances, question of applying limitation under section 11B of the Act would not arise since we hold that retention of such service tax would be without any authority of law.
- Before closing, we may record that with some of the observations made by this court in the case of Indo-Nippon Chemicals Co. Ltd. (supra), with respect, we have serious doubts. However, since such questions do not directly arise in this petition, we refrain from making any further observations in this regard.
- Under the circumstances, the amount of Rs. 91,128/- is payable to the petitioners by the respondents. However, since the petitioners filed such a claim only on 1-11-2003, they cannot claim interest on any period prior thereto.
- It is, therefore, directed that the respondents shall pay to the petitioners a sum of Rs. 91,128/- with simple interest at the rate of 9% per annum after a period of three months from the date of the application dated 1-11-2003 till actual payment. The petition is disposed of accordingly. Rule made absolute.