Madras High Court
M.B. Anbarasan Factory vs Assistant Collector Of C. Ex. on 27 January, 1992
Equivalent citations: 1992(60)ELT195(MAD)
ORDER
1. In all these writ petitions, the prayer is for refund of the amount in view of the order of the Customs, Excise and Gold (Control) Appellate Tribunal, 'Special Bench-A', New Delhi, setting aside the orders passed by the lower authority on the ground that the petitioners are not manufacturers. The Customs, Excise and Gold (Control) Appellate Tribunal has followed the decision of the Supreme Court in Ujagar Prints v. Union of India - 1988 (38) E.L.T. 535. The Tribunal has passed the order on 11-12-1990. In spite of many requests, refund has not been made by the respondents and as such the petitioners are now before me.
2. Notice of motion has been ordered by me on 17-12-1991. Mr. K. Jayachandran, learned Additional Central Government Standing Counsel appears before me and states that the appeals have been preferred before the Supreme Court on 25-3-1991 along with petitions for stay. However, in spite of sincere steps taken by the Department, they are not able to secure order of stay from the Supreme Court so far. Learned counsel also points out that the Department has sent telex messages in April, 1991, November, 1991 and January, 1992 with regard to obtaining of stay from the apex Court of the land in these matters.
3. Mr. C. Natarajan, learned counsel for the petitioners points out that the order of the Tribunal has been passed following the judgment of the Supreme Court in Ujagar Prints v. Union of India [1988 (38) E.L.T. 535] and states that the mere filing of appeals in the Supreme Court is not enough to deny the petitioners the refund of the duty paid. I am of the view that the contention of Mr. C. Natarajan, learned counsel for the petitioners has to be accepted. The mere filing of appeals before the Supreme Court without obtaining an order of stay therein will not be a sufficient ground for the Department to retain the duty paid by the petitioners. If the Department is vigilant, it should have obtained an order of stay. I am also informed that the appeals before the Supreme Court have been preferred in March, 1991 and almost a year is going to be over in two months since the filing of the appeals. As such, I do not see any justification for the respondents to retain the paltry amounts with them. Considering the fact that the petitioners are all small manufacturers, a direction will issue to the respondents to refund the amount in each case to the respective petitioners on or before 29-2-1992. The writ petitions are ordered accordingly. No costs.