Gujarat High Court
Mangal Textiles Mills (I) P Ltd vs Union Of India & on 13 June, 2013
Bench: M.R. Shah, Sonia Gokani
MANGAL TEXTILES MILLS (I) P LTD....Petitioner(s)V/SUNION OF INDIA C/SCA/242/2011 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 242 of 2011 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH -sd/- and HONOURABLE MS JUSTICE SONIA GOKANI -sd/- ============================================= 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5. Whether it is to be circulated to the civil judge ? NO ============================================= MANGAL TEXTILES MILLS (I) P LTD....Petitioner(s) Versus UNION OF INDIA & 1....Respondent(s) ============================================= Appearance: MR HASIT DILIP DAVE, ADVOCATE for the Petitioner(s) No. 1 MS AMEE YAJNIK, ADVOCATE for the Respondent(s) No. 2 NOTICE SERVED for the Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MS JUSTICE SONIA GOKANI Date : 13/06/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Present Special Civil Application under Articles 226 & 227 of the Constitution of India has been preferred by the petitioner herein for appropriate writ, direction and order to calculate and grant interest at the rate of 18% p.a to the petitioner on the amount of Rs.5,79,968/- applied by them w.e.f. 19.9.2002 by quashing and setting aside the impugned communication / order of respondent no.2 dated 19.11.2010.
2.0. The facts leading to the present Special Civil Application in nutshell are as under:
2.1. That the petitioner is engaged in the manufacture of excisable goods falling under Chapter 52, 54, 55 of the Schedule to the CETA, 1985.
That at the relevant time i.e. period of year 2000, the petitioner was operating under the compound levy scheme i.e. Section 3 A of the Central Excise Act (hereinafter referred to as the Act ). According to the petitioner, they discharged their Central Excise Duty liability firstly for the period of December 1998 to March 1999 and applied for re-fixation of APC on 14.5.1999 and then on 14.8.2000. That the duty liability worked out to Rs.92,50,000/-. That the Commissioner accordingly re-fixed the APC and communicated to the petitioner on 26.8.2002 that their duty liability for the period 16.2.1998 to 31.3.2000 totally was Rs. 1,18,87,096/- and more was actually already collected by an amount of Rs.5,79,968/-. That thereafter, the petitioner applied for abatement and immediate refund of the excess duty paid. However, according to the petitioner and on the direction of the department, they were advised to file refund claim for the excess duty so paid. Accordingly, the petitioner filed the refund claim for the above amount on various ground claiming rightful refund of the same vide claim dated 19.9.2002. That the petitioner was served with the show cause notice dated 11.12.2002 to show cause as to why the claim refund should not be rejected on the ground of unjust enrichment.
2.2 That by order dated 28.1.2003, the Deputy Commissioner of Excise though allowed the refund, however passed an order to credit the same to Consumer Welfare Fund on the ground of unjust enrichment.
2.3. Being aggrieved and dissatisfied with the order passed by the Deputy Commissioner of Excise dated 28.1.2003, the petitioner preferred appeal before the Commissioner (Appeals), Ahmedabad, which came to be dismissed by the Commissioner (Appeals), Ahmedabad by order dated 16.2.2005. That the matter was carried to the Tribunal and the Tribunal by order dated 9.8.2006 remanded the matter to the original authority for proving whether there was in fact an unjust enrichment or not. That by order dated 17.7.2007 Assistant Commissioner again rejected the refund claim of the petitioner. It is required to be noted at this stage that as such during the course of hearing before the Assistant Commissioner-original authority, the petitioner produced all the relevant documents inclusive of Cost Accountant Certificate and other documents in support of their claim that there was no unjust enrichment and that they were entitled to refund of duty paid in excess. Despite the above and without considering the same the Assistant Commissioner rejected the refund claim by order dated 17.7.2007. Being aggrieved and dissatisfied with the OIO passed by the Assistant Commissioner dated 17.7.2007 rejecting the refund claim of the petitioner, the petitioner preferred appeal before Commissioner (Appeals) and having noticed that the petitioner had submitted the voluminous documents, including Chartered Accountant Certificate, Cost Accountant Certificate and the judgment of different forum, to prove their point that the duty liability was absorbed by them and not passed on to the consumer and as such unjust enrichment will not be applicable in the case, the Commissioner by order dated 6.2.2008 remanded the matter to the original adjudicating authority for re-examining the whole issue, after proper scrutiny of all the documents submitted by the petitioner and pass reasoned order accordingly.
2.4. That thereafter on remand and considering all the relevant documents produced by the petitioner which were already produced on 18.4.2007, by order dated 1.8.2008, the original adjudicating authority
-Assistant Commissioner sanctioned the refund amount of Rs.5,79,968/- under Section 11 B of the Act. It appears that against the OIO dated 1.8.2008 passed by the Assistant Commissioner, department preferred appeal before the Commissioner (Appeals) and the very Commissioner of Appeals who earlier remanded the matter to the original authority, by order dated 28.11.2008 allowed the said appeal and quashed and set aside the OIO dated 1.8.2008 passed by the Assistant Commissioner sanctioning the refund of Rs.5,79,968/-. That being aggrieved and dissatisfied with the order passed by the Commissioner (Appeals), the petitioner approached the Appellate Tribunal and the Appellate Tribunal by order dated 21.7.2009 remanded the matter to the Commissioner for fresh decision, after dealing with all the evidences relied upon by the original adjudicating authority in favour of assessee. That thereafter on remand, the Commissioner of Appeals rejected the remand appeal of the Revenue and upholding OIO dated 1.8.2008. That thereafter, the refund was granted to the petitioner however simultaneous show cause notice for recovery as erroneous refund was also issued. That thereafter by order dated 11.2.2010 said show cause notice for recovery came to be dropped by the Assistant Commissioner, which came to be confirmed upto Tribunal. That in the meantime, the petitioner came to be paid the refund of Rs.5,79,968/- by cheque dated 8.9.2009. However, as the petitioner was not paid the interest on the refund the amount as provided under Section 11 B of the Act, he submitted the application submitting that they are entitled to the interest on the refund amount from 1999 to 2002 that the said application came to be rejected by the department by impugned order dated 19.11.2010 and the said order dated 19.11.2010 rejecting the prayer of the petitioner of interest on the refund amount is subject matter of this petition.
3.0. Shri Dave, learned advocate for the petitioner has vehemently submitted that the respondent has materially erred in not granting the interest from 1999 to 2000 till date of actual refund i.e. 1.8.2008. It is submitted that as such even after the order of refund dated 1.8.2008 actual amount of refund was not paid and the same came to be paid actually by cheque on 8.9.2009 and therefore, as such the petitioner shall be entitled to interest on the refund from 1999 to 8.9.2009.
3.1. It is further submitted by Shri Dave, learned advocate for the petitioner that in any case when the petitioners submitted all the necessary documents like Cost Accountant Certificate, statement of bills and process cost etc. after first order of remand i.e. 18.4.2007, the applicant shall be entitled to the interest on the refund amount at least from 18.4.23007 till the actual refund is paid. It is therefore, requested to consider the claim of the petitioner for the interest on the refund amount at least from 18.4.2007. It is further submitted by Shri Dave, learned advocate for the petitioner that when the respondents have collected the amount from the petitioner wholly unauthorizedly, the respondents cannot escape the liability of interest as available / provided under Section 11 B of the Act.
4.0. On the other hand and while opposing the petition and supporting the order passed by the authority denying the interest on the refund amount, Ms. Amee Yajnik, learned advocate for the department has submitted that as it was found that at the relevant time the petitioner did not produce the relevant documents to prove that the duty was not passed on to the consumer and there was no unjust enrichment and after submitting all the supporting documents thereafter and after order of refund came to be passed, the department has rightly denied the interest on the refund amount. Therefore, it is requested to dismiss the present petition.
5.0. Heard the learned advocates for the respective parties at length. From the chronological events referred to herein above, it appears that petitioner was served with the show cause notice as to why the actual amount of refund should not be denied to him on the ground unjust enrichment. The petitioner did not submit all the necessary documents to show and prove that the duty was not passed on to the consumer and there was no unjust enrichment and at the relevant time only produced Chartered Accountant Certificate without any supporting documents. It also appears that after the first order of remand by the Tribunal dated 9.8.2006, remanding the case to the original adjudicating authority for fresh decision and with an opportunity to the petitioner to produce all the evidences in the form of Chartered Accountant Certificate to prove the case of unjust enrichment, the petitioner produced the relevant supporting documents before the original adjudicating authority on 18.4.2007. Despite the above, the original adjudicating authority denied the refund without considering the aforesaid supporting documents and therefore, the Commissioner Appeals passed an order dated 17.7.2007 remanding the matter to the original adjudicating authority to consider the claim of the petitioner for refund, considering the documentary evidences produced (which were produced on 18.4.2007) and thereafter on the basis of the said documents order of remand has been passed by the department, however the department failed and the order dated 1.8.2008 sanctioning the refund came to be confirmed and thereafter the actual refund has been paid by cheque on 8.9.2009. Considering the aforesaid facts and circumstances of the case when the petitioner produced all the supporting documents such as Cost Accountant Certificate, Statement of Bills and process form etc. to prove that there was no unjust enrichment, which came to be accepted by the department while passing order dated 1.8.2008, it appears that the applicant shall be entitled to interest at least from June 2007 after deducting and / or granting some reasonable time to the original adjudicating authority to consider the refund claim of the petitioner on remand order. As stated above, as such while passing order dated 17.7.2007 the original adjudicating authority -Assistant Commissioner as such did not consider the supporting documentary evidences produced by the petitioner on 18.4.2007 and therefore, the Commissioner by passing order dated 6.2.2008 remanded the matter to the original adjudicating authority, for re-examining the whole issue, after proper scrutiny of all the documents submitted by the petitioner. Therefore, we are of the opinion that the petitioner shall be entitled to interest on the refund amount at least from 1.6.2007 and therefore, the present petition is required to be allowed to the aforesaid extent by modifying the impugned order passed by the authority.
6.0. In view of the above and for the reasons stated above, petition succeeds in part and it is held that the petitioner shall be entitled to the interest on the amount of refund i.e. Rs. 5,79,968/- under Section 11 B of the Act w.e.f. 1.6.2007 till 8.9.2009 (till actual date of refund amount) and consequently the impugned order passed by the respondent no.2 dated 19.11.2010 impugned in the present petition is modified to the aforesaid extent. The aforesaid amount of interest shall be paid to the petitioner within a period of 6 weeks from the date of receipt of present order and / or production of certified copy of the present order. Rule is made absolute to the aforesaid extent. No costs.
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(M.R.SHAH, J.) sd/-
(MS SONIA GOKANI, J.) Kaushik Page 7 of 7