Bombay High Court
Indian Plastics Ltd. vs Union Of India on 7 July, 1993
Equivalent citations: 1993(68)ELT308(BOM)
JUDGMENT Pendse, J.
1. petitioners are a Company registered under the provisions of the Companies Act, 1913 and are engaged in the manufacture of phenolic resins in the factory situated at Poisar Bridge, Kandivli. After manufacture of phenolic resin, certain fillers, pigments, plasticisers and other additives are added so as to modify the phenolic resins into what is popularly known as phenolic formaldehyde moulding power. The Company also manufactures Urea Formaldehyde resin and Melamine Formaldehyde resin at the factory. After these resins are fully manufactured, certain fillers, pigments, plasticisers and other additives are added so as to modify the resins into what is known as Urea Formaldehyde moulding powders and Melamine Formaldehyde moulding powders.
Section 3 of Central Excise and Salt Act, 1944 (hereinafter referred to as the `Act') provides that there shall be levied and collected duties of excise on all excisable goods which are produced or manufactured at the rates set forth in the Schedule to the Act. Prior to January 1982, the Company paid excise duty on P. F. moulding powders in accordance with the rates prescribed under Item No. 15-A of the First Schedule. Item No. 15-A refers to artificial or synthetic resins and plastic materials and other materials and articles specified therein.
2. By circular dated May 5, 1982, the Government of India informed all the Collector of Central Excise that the Chief Chemist of Central Government had opined that it would be difficult to consider the transformation of phenolic resins into P. F. moulding powders as a process of manufacture. By another circular dated October 6, 1982 the Central Government referred to earlier circular and also upon order passed on April 6, 1982 by Government of India in exercise of revisional powers holding that P. F. moulding powders obtained by modification of phenolic resins with fillers and other additives do not cease to be phenolic resins. The circular provides that since phenolic resins include phenolic moulding powders, the further modification of phenolic resins by fillers, additives, etc. does not amount to manufacture of any new or distinct product and, therefore, no further duty of excise can be levied on such modified phenolic resin. The fact that modification of phenolic resin by fillers, additives, etc. does not amount to manufacture is also decided by Division Bench of this Court and to which one of us (Pendse, J.) was a party in 1992 (57) Excise Law Times 390 Industrial Plastic Corporation Pvt. Ltd. v. Union of India.
3. The Company on realisation that excise duty on moulding powders made from phenolic resins was paid by mistake filed a fresh classification list showing P. F. moulding powder as non- excisable by letter dated January 27, 1983. The Company claimed that pending approval of the fresh classification list, the duty would be paid under protest. The classification list filed by the Company was approved by the Assistant Collector of Central Excise of August 1, 1983. Similar classification lists were filed in respect of Urea Formaldehyde moulding powders and Melamine Formaldehyde moulding powders. The Company filed the present petition under Article 226 of the Constitution of India on December 16, 1983 claiming that the respondents have wrongfully recovered the aggregate sum of Rs. 1,83,8,537.57 towards excise duty in respect of manufacture of P. F moulding powders, U. F. moulding powders and M. P. moulding powders. The Company claimed that as the moulding powders were not assessable to duty, the recovery of the amounts from the Company under the guise of excise duty was without authority of law and in excess of respondents' jurisdiction to levy and collect duty. The petitioners sought a writ of mandamus directing the respondents to forthwith refund Rs. 1,83,28,537.57 along with interest at the rate of 18% per annum from the date of recovery till the date of refund. The petition was duly admitted.
During the pendency of the petition, the Company addressed letter to the Collector of Central Excise on December 19, 1985 seeking refund of duty paid under protest for the period between January 27, 1983 and August 23, 1983 in respect of manufacture of phenolic formaldehyde moulding powder. The amount of refund sought was Rs. 12,43,986.93. It appears that though the hearing as regards the refund claimed by the Company in respect of duty paid under protest was concluded on January 7, 1987, the Excise Officer failed to pass any orders. The petitioners thereupon took out Notice of Motion No. 2405 of 1988 on September 2, 1987 seeking direction to the respondents to forthwith make the refund. On December 2, 1988, the respondents were directed to deposit Rs. 12,43,986.93 in this Court on or before December 16, 1988 and the petitioners were permitted to withdraw the said amount. It is not in dispute that the petitioners had withdrawn the said amount.
The petitioners are now seeking refund of the balance amount of Rs. 1,70,84,550.64. The break-up of this amount is :
Rs. (1) Excess duty paid on P. F. 92,80,472.58 moulding powders between May 1979 and January 1983.
(2) Excess duty paid on U. F. 55,17,785.35 moulding powders between May 1980 and August 1983.
(3) Excess duty paid on M. F. 22,86,292.71 moulding powders between May 1980 and August 1983.
4. Before adverting to the submissions urged in support of the claim, it is necessary to refer to the provisions for refund of duty as prescribed under the Act and the Rules. Till November 17, 1980, claim for refund of duty was required to be made in accordance with provisions of Rule 11 of Central Excise Rules. Rule 11 provided that any person claiming refund of any duty paid by him may make an application for refund to Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty. On November 17, 1980, Rule 11 was deleted and substituted by Section 11B in Central Excises and and Salt Act. The contents of Rule 11 were maintained in Section 11B but sub- section (5) was added and which reads as under :
"Notwithstanding anything contained in any other law, the provisions of this section shall also apply to a claim for refund of any amount collected as duty of excise made on the ground that the goods in respect of which such amount was collected were not excisable or were entitled to exemption from duty and no court shall have any jurisdiction in respect of such claim".
It has been held by catena of decisions of this Court as well as the Supreme Court that limitation of six months prescribed under Rule 11 or Section 11B is binding upon the Officer exercising power under the Act but has no application when the claim for refund is filed by the assessee under Article 226 of the Constitution of India on the ground that the duty recovered was without any authority of law or under mistake of law. Reference to the following two decisions is suffice :
(1) D. Cawasji and Co. and Others v. State of Mysore and Another [1978 (2) E. L. T. (J 154)].
(2) I. T. C. Limited v. M. K. Chipkar and Others [1985 (22) E. L. T. 334].
On September 20, 1991, provisions of Section 11B of the Act were further amended. Section 11B of the Act with effect from September 20, 1991 under-went substantial changes and it is necessary to set out provisions of sub-sections (1), (2) and (3) of Section 11B to appreciate the submission advanced at the Bar.
"11B. Claim for refund of duty-
(1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date in such form as may be prescribed and application shall be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person:
Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and same shall be dealt with in accordance with provisions of sub- section (2) substituted by that Act :
Provided further that the limitation of six months shall not apply where any duty has been paid under protest.
(2) If, on receipt of any such application, the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :
Provided that the amount of duty of excise as determined by the Assistant Collector of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to applicant, if such amount is relatable to-
(a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
(b) unspent advance deposits lying in balance in the applicant's account current maintained with Collector of Central Excise;
(c) refund of credit of duty paid on excisable goods used as inputs in accordance with rules made, or any notification issued, under this Act;
(d) duty of excise paid by the manufacture, if he had not passed on the incidence of such duty to any other person;
(e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person;
(f) the duty of excise borne by any other such class of applicant as the Central Government may, by notification in the Official Gazette, specify :
Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of Central Government the incidence of duty has not been passed on by the persons concerned to any other person.
(3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provisions of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2) ".
5. Shri Andhyarujina, learned Counsel appearing on behalf of the petitioners, submitted that the recovery of excise duty from the petitioners in respect of manufacture of P. F. moulding powders, U. F. moulding powders and M. F. moulding powders was without authority of law and without jurisdiction in view of the circulars issued by Government of India and the decision recorded by the Division Bench of this Court. The learned Counsel urged that the circulars and judgment conclusively established that modification of phenolic resins by fillers, additives, etc. does not amount to manufacture. It was urged that the recovery of excise duty was unconstitutional as levy was in respect of a process which was found to be not manufacture as understood under the Act. The learned Counsel urged that as there was constitutional prohibition to levy excise duty on goods which were not manufacture, the recovery was without jurisdiction and violative of constitutional prohibition and, therefore, the petitioners cannot be forced to make an application for refund of duty under Section 11B of the Act as it stands on September 20, 1991. It was contended that Section 11B is only a machinery culled out for refund of excise duty and if the levy is not of excise only, then Section 11B of the Act is not attracted. The learned Counsel urged that application of Section 11B of the Act should be restricted only to cases of recovery of illegal excise duty, within jurisdiction of the excise authorities and not to a levy which is prohibited by the Constitution. Shri Desai, learned Counsel appearing on behalf of the Department, on the other hand, urged that the claim that the recovery of excise duty was without jurisdiction and violative of Constitutional prohibition is not accurate. It was urged that it was for the Excise authorities to determine whether a particular process amounts to manufacture and the mere fact that the assessment of Excise Officer was erroneous in view of subsequent developments cannot lead to the conclusion that recovery of excise duty was without jurisdiction. The learned Counsel urged that the right of refund is available to the petitioners as soon as it was decided that the process undertaken by the petitioners does not amount to manufacture but the grant of refund is regulated by the provisions of Section 11B of the Act and as there is machinery provided by the Act for grant of refund, relief cannot be granted by court either by entertaining the suit or in exercise of writ jurisdiction when the recovery of excise duty was on the basis of the decision which was subsequently found to be irregular. Shri Desai submitted that the petitioners have not challenged constitutional validity of Section 11B of the Act and the claim that the refund should be granted in exercise of writ jurisdiction should not be entertained. The Assistant Collector, says Shri Desai, should be left to determine whether the refund as claimed by the petitioners can be entertained and granted in accordance with the provisions of Section 11B of the Act.
6. Section 3(1) of the Act is a charging Section and, inter alia, provides that there shall be levied and collected duties of excise on all excisable goods which are produced or manufactured in India at the rate set forth in the Schedule to the Act. The expression "manufacture" is defined under Section 2(f) of the Act and includes any process, (i) incidental or ancillary to the completion of manufactured product, and (ii) which is specified in relation to any goods in the Section or Chapter notes of the Schedule to the Central Excise Tariff Act as amounting to manufacture. The duty to ascertain whether any process amounts to manufacture is cast upon the Collector or Assistant Collector of Central Excise under the provisions of the Act. The decision of the Assistant Collector is made appealable under Section 35 of the Act to the Collector (Appeals) in case the order is passed by Central Excise Officer lower in rank than the Collector. Section 35B provides appeals to the Appellate Tribunal against the order of Collector (Appeals). Section 11B provides for claim for refund of duty which was found to have been recovered erroneously or under the mistake of law. The petitioners paid excise duty after filing the classification lists on assumption that the process undertaken to modify phenolic resin into moulding powder amounted to manufacture. It is undoubtedly true that subsequently it was decided by the Central Government that the process does not amount to manufacture and is not liable to payment of excise duty and it was also so held by the decision of this Court. The question which falls for determination is whether the recovery of excise duty by the respondents was without jurisdiction and in violation of constitutional prohibition because subsequently, it was determined that the process undertaken by the petitioners does not amount to manufacture as contemplated under section 2(f) of the Act.
7. Article 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. The respondents had recovered excise duty under the authority conferred by Section 3 of the Act and the levy was on the basis of the conclusion of the Assistant Collector that the process undertaken by the petitioners amounts to manufacture. Shri Andhyarujina contended that one it was subsequently found that the process undertaken did not amount to manufacture, then it must follow that the recovery of excise duty was without any authority of law and in breach of constitutional mandated under Article 265 of the Constitution of India. It was also claimed that the recovery of duty cannot be termed as excise duty and, therefore, the petitioner cannot be driven to file an application under Section 11B of the Act. The submission was advanced obviously because the right to claim refund is circumscribed by various conditions provided under Section 11B of the Act after amendment on September 20, 1991 and the principal condition is establishment of the fact that the amount of duty of excise in relation to which refund is claimed had not been passed on to any other person. Sub-section (3) of Section 11B of the Act issues a mandate that no refund shall be made except provided in sub- section (2) notwithstanding anything to the contrary contained in the judgment, decree, order or direction of the Appellate Tribunal or any court. The contention was advanced on behalf of the petitioners that provisions of sub-section (3) of Section 11B of the Act are not attracted when the recovery of duty was in breach of Constitutional mandate and the contention is that once it was found that the process did not amount to manufacture, the respondents had no authority or jurisdiction to levy and recover any duty. It is not possible to accede to the submission urged on behalf of the petitioners. The claim that the recovery of excise duty was in breach of Constitutional prohibition and was without jurisdiction is not accurate. The Excise authorities were required to determine whether a certain process amounts to manufacture liable to payment of excise duty. The mere fact that the Excise authorities arrived at the conclusion which was subsequently found to be erroneous either by the decision of the Central Government or the decision recorded by the superior authorities or by the Court would not automatically lead to the conclusion that the Excise authorities lacked initial jurisdiction to determine whether the petitioners were liable to pay excise duty. It must be said in fairness to Shri Andhyarujina that the learned Counsel did not even suggest that the Excise authorities had not initial jurisdiction to determine whether the excise duty is to be levied in respect of process undertaken by the petitioners but urged that once it was finally determined that the process did not amount to manufacture, then it must be concluded that the Excise authorities had no jurisdictional right from the inception. We are afraid, we cannot accede to the submission. It is only the Excise authorities who had jurisdiction to decide whether a certain process amounts to manufacture and liable to payment of excise duty and the mere fact that the authorities constituted under the Act take an erroneous decision or the exercise of jurisdiction is irregular, that cannot lead to the conclusion that the orders passed were without jurisdiction and the recovery of duty was in breach of constitutional prohibition. The distinction between total lack of jurisdiction and irregularity in exercise of jurisdiction is well defined and error or irregular exercise of jurisdiction cannot be equated with lack of jurisdiction. The Excise authorities being entitled to determine the character of the process undertaken by the petitioner and the levy of excise duty was based upon the decision on the character of the process, it cannot be claimed that the Excise authorities were acting without jurisdiction.
8. Reference can be usefully made to the decision of the Supreme Court M/s. Kamala Mills Ltd. v. State of Bombay where the question arose as to whether the decisions on the question about the character of sale transaction can be treated as decision on the collateral activity. The Supreme Court negatived the claim and Chief Justice Gajendragadkar speaking for the Bench observed :
"At this stage, we are only dealing with question as to whether Mr. Sastri is right in contending that an erroneous conclusion of the appropriate authority on the question about the character of the sale transactions on which the appellant has been taxed, can be said to be without jurisdiction. In other words, if the appropriate authority, while exercising its jurisdiction and powers under the relevant provisions of the Act, holds erroneously that a transaction, which is an outside sale, is not an outside sale and proceeds to levy sales-tax on it, can it be said that the decision of the appropriate authority is without jurisdiction ? In our opinion, this question cannot be answered infavour of Mr. Sastri's contention............
We are not prepared to hold that an assessment based on an erroneous finding about the character of the transaction, is an assessment made without jurisdiction".
Shri Andhyarujina placed strong reliance upon the decision of the Supreme Court Bharat Kala Bhandar Ltd. (Private) v. Municipal Committee, Dhamangaon to urge that where the tax levied was without authority, then it is not necessary to seek refund for that authority and the suit or filing of a writ is perfectly maintainable. The reliance on this decision is not accurate. In the case before the Supreme Court, the appellant was paying a tax at the rate one anna per unit weight of cotton under Section 66(1) (b) of the Central Provinces Municipalities Act, 1922 from year 1936. In the year 1941, the rate of tax was increased to 4 annas. In the year 1952, the appellant filed a suit for recovery of excess tax paid within 3 years of the date of suit by claiming that after coming into force of Section 142A of Government of India Act, 1935, a tax in excess of Rs. 50/-per annum could not have been imposed and after coming into force of the Constitution, the upper limit of the tax was raised to Rs. 250/-per annum under Article 276 of the Constitution and as the appellant was already paying more than this amount per year even at the rate of one anna, the enhanced rate of 4 annas was illegal. The trial Court decreed the suit but the High Court reversed the decision holding that the suit was bad for non-compliance with the requirement of Section 48 of the Act which provided that the suit for anything done or purported to be done under the Act shall be instituted only after expiration of 2 months after serving a written notice and within six months from the date the accrual of the alleged cause of action. In appeal to the Supreme Court, the majority held that since the respondent had no authority to levy a tax beyond what Section 142A of the Government of India Act, 1935, or what Article 276 of the Constitution of India permitted, the assessment proceedings were void in so far as they purported to levy tax in excess of the permissible limit and authorise its collection, and the assessment order was no answer to the suit for recovery of the excess amount, and, therefore the suit was maintainable. The majority observed that the Constitution is a fundamental law of the land and it is unnecessary to provide in any law that anything done in disregard of the Constitution is prohibited. It was further held that a tax can be recovered only if it is payable and it would be payable only after it is assessed. The suit instituted by the appellant was held not to be barred on the ground that the Act does not provide a machinery for making claim for refund or repayment on the ground of unconstitutionality of the levy and the jurisdiction of the civil Court in cases of refund is not taken away. The minority decision relied upon the judgment of the Privy Council reported in 74 Indian Appeals 50 Raleigh Investment Co. Ltd. Governor-General in Council to hold that the suit was not competent. The observation of the Privy Council to the following effect were relief upon :
"An assessment made under the machinery provided by the Act, if based on a provision subsequently held to be ultra vires, is not a nullity like an order of a court lacking jurisdiction. Reliance on such a provision is not in excess of jurisdiction but a mistake of law made in the course of its exercise".
Shri Andhyarujina submitted that the decision of the Privy Council was not approved by the Supreme Court in the judgment M/s. K. S. Venkataraman and Co. (P) Ltd. v. State of Madras. In our judgment, the reliance on the case of Bharat Kala Bhandar Ltd. is not appropriate. The decision in Bharat Kala Bhandar Limited proceeds on the ground of lack of legislative competency to levy the tax. The case of lack of legislative competency stands on a different footing and a person cannot be compelled to seek refund from the authority which lacks initial jurisdiction to pass an order of assessment levying and realising the tax. It hardly requires to be stated that in the face of Article 265 of the Constitution of India. tax cannot be recovered without any authority of law and when the Legislature was not competent to pass a law, the realisation of the tax on the strength of such law cannot compel the taxpayer to go back to the authority for seeking refund. In the present case, it is not the contention of the petitioner that the Excise authorities suffered from lack of jurisdiction because of lack of legislative competence but the claim of lack of jurisdiction is based upon the erroneous decision taken by the Excise authorities as regard the character of process undertaken by the petitioner. In our judgment, the reliance upon the decision of Bharat Kala Bhandar Limited is not correct.
9. The decision of Bharat Kala Bhandar Limited as well as Kamala Mills was subsequently considered by the Supreme Court in Bata Shoe Co. Ltd. v. City of Jabalpur Corporation. Section 84(3) of C. P. and Berar Municipalities Act provided that no objection shall be taken to any assessment, nor the liability of any person to be assessed be questioned in any other manner or by any other authority than is provided in the Act. Bata Shoe Company had paid octroi duty at a certain rate. The Corporation re-opened and revised the assessment and levied double duty by way of penalty. The company filed suit after pursuing the remedies under the Act and making payment for recovery on the ground that the Corporation was not entitled to levy the amount by way of octroi duty and penalty. The trial Court decreed the suit and the High Court modified the decree. In appeal to the Supreme Court, it was held that the suit was barred from cognizance of Civil Court. Chief Justice Chandrachud speaking for the Bench observed that both the Act and the Rules contain provisions enabling the aggrieved party to affectively challenge an illegal assessment or levy for double duty and, therefore, the ordinary remedy by way of a suit would be excluded on a true interpretation of Section 84(3). The Supreme Court noticed that various provisions of the Act conferred power upon the Corporation to assess and recover octroi duty and double duty on goods which are brought within municipal limits for sale, etc. It was then observed.
"The circumstances that the defendants might have acted in excess of or irregularly in the exercise of that power cannot support the conclusion that the assessment or recovery of the tax is without jurisdiction. If the appropriate authority while exercising it jurisdiction and powers under the relevant provisions of the Act, holds erroneoulsy that an assessment already made can be corrected or that an assessee is liable to pay double duty when Rules in fact, does not justify such an imposition, it cannot be said that the decision of the authority is without jurisdiction. Questions of the correctness of the assessment apart from its constitutionality are, for the decision of the authorities set up by the Act and a civil suit cannot lie if the orders of those authorities are given finality."
In our judgment, the decision of the Supreme Court in Bata Company's case is clear answer to the contention urged on behalf of the petitioners that the assessment of Excise authorities that the process undertaken by the petitioners amounted to manufacture as contemplated under Section 2(f) of the Act was erroneous and, therefore, without jurisdiction.
Shri Andhyarujina made reference to the decision Firm Seth Radha Kishan (deceased) represented by Hari Kishan and Others v. Administrator Municipal Committee, Ludhiana and The State of Bombay (now Gujarat) v. Jagmohandas and Another, but it is not necessary to examine those cases in greater detail in view of later decision of Supreme Court in Bata Shoe Company. Reference was also made to the decision (Salonah Tea Co. Ltd. and Others v. Superintendent of Taxes, Nowgong and Others) where the question arose as to whether the High Court in exercise of Article 226 of the Constitution of India should direct refund of tax when the provisions of the Assam Taxation (on Goods Carried by Road and Inland Waterways) Act, 1954 was declared ultra vires the Constitution by Supreme Court. The Supreme Court observed that normally in a case where tax or money has been realised without the authority of law, there is a concommitant duty to refund the realisation as a corollay of the constitutional inhibition that should be respected. There is no quarrel that the claim that the petitioners are entitled to refund once it was found that the process undertaken did not amount to manufacture. The dispute is whether the petitioners should approach Excise authorities under Section 11B of the Act to seek relief or relief can be granted independently under Article 226 of the Constitution of India. In our judgment, the decision in Salonah Tea company's case, therefore, has no application to the facts of the case.
10. In our judgment, the conclusion is inescapable that the petitioners cannot seek relief of refund de hors the provisions of Section 11B of the Act. The claim that the recovery of duty cannot be termed as excise duty because the recovery was based on a wrong assessment that the process undertaken by the petitioners amounted to manufacture cannot be accepted. The Excise authorities recovered excise duty under the colour or the authority flowing from the provisions of Central Excises and Salt Act and merely because the assessment was irregular as noted subsequently, the character of duty does not cease to be an excise duty. In our judgment, it is not permissible for the petitioners to seek relief of refund by-passing the provisions of Section 11B of the Act. Section 11B of the Act does not create a right of refund but merely regulates and as per sub- section (3) of Section 11B, the Excise authorities will have to examine the claim of refund in accordance with sub-section (2) of Section 11B of the Act. It is, therefore, not possible to grant relief in favour of the petitioners in the present proceedings. Shri Andhyarujina points out that in case the petitioners are directed to file application before the Excise authorities under Section 11B of the Act, then the Excise authorities will not be able to examine the claim for refund beyond the period of six months from the date of the payment and consequently the substantial part of the claim would stand defeated. The learned Counsel, therefore, submitted that the Excise authorities should be directed in the present proceedings to examine the claim of the petitioners in accordance with provisions of Section 11B of the Act, but not to reject any part of the claim on the ground of limitation. The submission is correct and deserves acceptance. As mentioned hereinabove, by catena of decisions, it has been held that the limitation prescribed by sub-section (1) of Section 11B of the Act is binding upon the Excise authorities but not upon this Court while exercising jurisdiction under Article 226 of Constitution of India. It is, therefore, necessary to direct the respondents to examine the claim of refund made by the petitioners without treating any part of the claim as barred by limitation. It is also necessary to direct the respondents to determine the claim on merits within a period of 12 weeks. The petitioners are at liberty to produce the requisite documents before the authorities.
11. Accordingly, petition partly succeeds and the respondents are directed to examine the claim of refund made by the petitioners by giving an opportunity to the petitioners to produce the documents and other materials. The respondents are directed to determine the claim for refund on merits within a period of 12 weeks from today and while determining such claim, the respondents shall not dismiss any part of the claim on the ground of limitation. It is made clear that part of the refund amount already withdrawn by the petitioner in pursuance of the orders of this Court is not open for reconsideration before the Excise authorities. In the circumstances of the case, there will be no order as to costs.