Bombay High Court
Indian Coffee And Tea Distributing Co. ... vs Union Of India on 1 January, 1800
Equivalent citations: 1990(48)ELT512(BOM)
JUDGMENT
1. By this petition filed under Article 226 of the Constitution of India, the petitioner is seeking a writ of mandamus directing the respondents to forthwith dispose of six refund applications, details of which are given in ...... of the petition.
2. The petitioner is a public limited company and is engaged in the manufacture of seats and back-rests of scooter, motor cycles and auto rickshaws. Prior to July, 1975, the products manufactured by the petitioners were liable to be assessed for the purpose of excise duty under Tariff Item 16A(i) of the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as `the Act'). The petitioners applied to the Assistant Collector on July, 9, 1975 claiming that the manufacture of their products is liable to be assessed under Tariff Item 34A instead of 16A (i). The Assistant Collector rejected the claim by order dated August 7, 1976. The Collector of Central Excise confirmed the order on August 29, 1977, but the appeal preferred by the petitioner to the Central Board of Excise was allowed by order dated July 16, 1980, and it was held that the products manufactured by the petitioners are liable to be assessed under Tariff Item 34A.
3. In accordance with the order passed by the Central Board of Excises, the petitioner filed its applications for a period commencing from August 1, 1973 to July 24, 1974 and from March 1, 1979 to August 6, 1980. The grievance of the petitioner is that the refund applications are not decided by the Department, for no apparent reason. The petitioner pointed out that respondent No. 1, Government of India, issued show-cause notice dated December 31, 1980 to the petitioner with a view to revise the order passed by the Central Board of Excise. The petitioner preferred Writ Petition in Delhi High Court to challenge the issuance of the show cause notice and the petition was admitted and interim relief was granted on February 16, 1981. The interim relief was confirmed by Delhi High Court, inspite of the resistance by department on August 28,1981. In these circumstances, the petitioner claims that its refund applications should be disposed of forthwith and the amount claimed by them should be paid to them.
4. The respondents have not filed any return to the petition, but Shri Sethna, learned counsel appearing on behalf of the Department for an adjournment on two grounds. Shri Sethna submits that he was briefed only yesterday and therefore it is not possible to file the return when the petition was called out for hearing today. The second ground urged is that the petition was admitted in August 1983 and there is no reason why it should be heard so expeditiously. There is o merit in the application for adjournment and I have rejected the same. In the first instance it is futile for Shri Sethna to seek an adjournment on the ground that he was briefed by the Department only yesterday evening. The petition was posted for hearing today on the application of the petitioner made in the last week after giving notice to the Department. The petition was admitted on August 2, 1983 and the learned Judge did not grant interim relief but expedited the hearing of the petition. Inspite of it, it is difficult to understand why the Department thinks that it can wait till the petition reaches hearing to prepare a return. In my judgment, the application for adjournment is entirely misconceived and the mere fact that the Department has chosen to engage the counsel only one day prior to the hearing, is no ground to postpone the hearing. In these circumstances I decline to adjourn the hearing of the petition.
5. Shri Sethna then submits that the Department is not proceeding to consider the refund applications because the applications are based on the decision given by the Central Board of Excise and that decision is under revision by the Central Government. Shri Sethna submits that as the petitioner has prevented the Central Government from revising decision by filing the writ petition, the Department is justified in not processing the refund applications. In my judgment, the submission is entirely erroneous. The petitioner is entitled to claim refund to the Government has chosen to revise the order is no ground to decline the refund to the petitioner. Shri Sethna submits that in case the refund applications are processed and the refund is granted and then if the order passed by the Central Board is set aside in revision by the Central Government, the Department would find it very difficult to recover back the amount from the petitioner. There is no merit in this submission, because the petitioner Company is quite sound and the respondents have not any reason why they will not be able to recover back the amount. Apart from this consideration, the petitioner is willing to give an undertaking that in case ultimately the Government of India is able to revise the order of the Central Excise to the detriment of the petitioner, the petitioner would refund the amount recovered in accordance with the refund applications. In may judgment, the undertaking of the petitioner is more than sufficient to safeguard the interest of the Department.
6. Accordingly, the petition succeeds and the rule is made absolute and the respondents are directed to process the refund applications and pass appropriate order of refund and pay the said amount to the petitioner within a period of eight weeks from today. The petitioner undertakes to this Court that in case the amount of refund is paid and subsequently the Government of India is able to revise the order of the Central Board of Excise to the detriment of the petitioner, then the petitioner would refund the said amount to the Government, without prejudice to its right to adopt appropriate remedy to challenge the correctness of the order which may be passed by the revisional authority. Undertaking accepted.
7. The respondents shall pay the costs of the petition.