Gauhati High Court
Surma Valley Saw Mills Pvt. Ltd. And Ors. vs Union Of India (Uoi) And Ors. on 2 April, 1997
Equivalent citations: 1997(58)ECC87
Author: A.K. Patnaik
Bench: A.K. Patnaik
JUDGMENT A.K. Patnaik, J.
1. This is an application under Article 226 of the Constitution of India. The petitioner has sought for a direction on the respondents to refund an amount of Rs. 2,49,173.60 with interest @ 18 per cent per annum.
2. The facts briefed are: The petitioner No. 1, viz., M/s. Surma Valley Saw Mills Pvt. Ltd. is a manufacturer of plywood, block board, etc. By notification No. 80/80-CE dated 19.6.1980 issued by the Central Government under Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, a small scale industry was allowed exemption from excise duty if its clearances did not exceed the limit of Rs. 20 lakhs. Thereafter the limit of Rs. 20 lakhs was enhanced to Rs. 25 lakhs by notification No. 83/83 dated 1.3.1983. The Assistant Collector of Central Excise and Customs, Karimganj, did not allow the exemption to the petitioner. Being aggrieved the petitioner filed appeals before the Collector (Appeals), Central Excise, Calcutta. The said appeals were also rejected. Then the petitioner preferred appeals before the Customs, Excise & Gold (Control) Appellate Tribunal (for short the CEGAT). The said appeals numbered as ED(SB) Appeal No. 2668 of 1984-D and No. 2667 of 1984-D were disposed of by the CEGAT with the observation that sawn timber were not to be included in the value of clearances for the purpose of limit of Rs. 20 lakhs and 25 lakhs laid down in the notification Nos. 80/80-CE dated 19.6.1980 and 83/83-CE dated 1.3.1983 within which the exemption to small scale industries were to be allowed. Pursuant to the said orders passed by the CEGAT, the petitioners claimed refund of excise duty for the period 1982-83, 1983-84 and 1984-85 amounting to Rs. 2,49,173.60 but the said refund was not allowed by the department. Petitioners have moved this Court under Article 226 of the Constitution of India for a direction on the respondents to refund the aforesaid amount with interest @ 18% per annum.
3. Mrs. Hazarika, learned Counsel for the petitioner contended that since the CEGAT in the appellate orders has finally held that the value of sawn timber cleared by the petitioners for the aforesaid periods 1982-83, 1983-84 and 1984-85 has to be excluded for the purpose of determining the limit of clearances laid down in the exemption notifications Nos. 80/80-CE dated 19.6.1980 and 83/83 dated 1.3.1983 up to which a manufacturer is entitled to the exemption under the said notifications, this is a fit case in which the respondents should be directed to pass orders on the claims for refund in accordance with Section 11B of the Central Excises and Salt Act, 1944. Mr. K.N. Choudhury, learned Sr. C.G.S.C, however, argued that the respondents have taken a plea in the Affidavit-in-Opposition that the petitioner has passed on the incidence of excise duty to its customers and under the provisions of Section 11B of the Central Excises and Salt Act, 1944, the excess amount of duty paid by the manufacturer cannot be refunded.
4. On a reading Section 11B of the Central Excises and Salt Act, 1944 as well as the judgment of the Supreme Court in the case of Union of India and Ors. v. Jain Spinners Limited and Anr. (1992) 4 SCC, page-389 cited by Mr. K.N. Choudhury, I find that it is the Assistant Collector of Central Excise who is empowered under Section 11B of the Central Excises and Salt Act, 1944 to adjudicate on applications for refund. Obviously while adjudicating on the refund application filed by manufacturer, the Assistant Collector will have to decide inter alia as to whether the duty of excise paid by the manufacturer in respect of which the claim of refund has been made, has in fact been passed on to the customer. This decision of the Assistant Collector will depend upon various factual matters which may be placed before him by the manufacturer or the department and this Court under Article 226 cannot deal [with] such contentions.
For the reasons stated above, I dispose of this writ petition with the direction to the Assistant Collector of Central Excise, Karimganj, to consider the applications of the petitioner under Annexures-5, & 4, 4A for refund of excise duty amounting to Rs. 83,831.37, Rs. 80,727.74 and Rs. 84,614.49, totalling to Rs. 2,49,173.60 in accordance with the provisions of Section 11B of the Central Excises and Salt Act, 1944 and pass orders thereon within a period of two months from the date of receipt of certified copy of this Order.