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1 - 10 of 21 (0.26 seconds)Article 265 in Constitution of India [Constitution]
Central Excise Tariff Act, 1985
Section 72 in The Indian Contract Act, 1872 [Entire Act]
Mafatlal Industries Ltd. And Ors. vs Union Of India (Uoi) And Ors. on 19 December, 1996
10.4 On the basis of the above judgements of the Hon'ble Supreme Court,
and more particularly on the basis of detailed judgement regarding the
various situations in which refund arise and the proper legal perspective in
handling the refund claims as enunciated in the case of Mafatlal Industries
(supra), we have no hesitation in coming to the conclusion that no claim
for refund of central excise duty is permissible except under and in
accordance with Section 11B of the Central Excise Act, 1944. Further,
where the levy of duty itself is considered as 'unconstitutional' implying
that such amount was paid without reference to any provisions of the Act
of 1944, and therefore in such cases alone the time limit prescribed under
Section 11 B would not apply. In all other cases, the refund application is
required to be filed within the prescribed time limit of one year from the
relevant date in terms of Section 11B ibid. Even in the case of 'discovery
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E/89871/2018
of mistake of law', the person claiming the refund has to succeed in his own
case of litigation before the Tribunal/Courts in order to be eligible for refund
of duty or tax paid by him; and such person cannot claim on the basis of
order or decision given in favour of some other person.
Hindustan Cocoa Products vs Union Of India on 8 June, 1994
E/89871/2018
"5. We are of the view that the issue as to whether limitation
prescribed under Section 11B of the said Act applies to a refund claimed
in respect of service tax paid under a mistake of law is no longer res
integra. The two decisions of the Division Bench of this Court
in Hindustan Cocoa (supra) and Commissioner of Central Excise,
Nagpur v. M/s. SGR Infratech Ltd. (supra) are squarely applicable to the
facts of the present case.
M/S. Parijat Construction vs Commissioner Of Central Excise, Nashik on 13 October, 2017
(Emphasis supplied)
10.2 We find that the facts of the case dealt with by the Hon'ble Bombay
High Court in the case of Parijat Construction (supra) are entirely different
from the facts of the present case. In the relied upon case, it involved
payment of service tax, where such services were held to be not leviable
to service tax, and therefore it was considered by the Hon'ble Bombay High
Court as payment of tax under 'mistake of law' enabling refund of tax paid
by the appellants therein, without application of limitation of time
prescribed under Section 11B of the Act of 1994. The relevant paragraphs
of the said judgement is extracted and given below:
) M/S. Itc Ltd vs Commissioner Of Central Excise, ... on 21 May, 2009
(ii) ITC Limited Vs. Commissioner of Central Excise, Kolkata-IV - 2019
(368) E.L.T. 216 (S.C.);
Assistant Commissioner (Ct) Ltu ... vs M/S Glaxo Smith Kline Consumer Health ... on 6 May, 2020
(iii) Assistant Commissioner (CT) LTU, Kakinada & Ors. Vs. Glaxo Smith
Kline Consumer Health Care Limited - 2020 (36) G.S.T.L. (305) 305;
Pfizer Limited & Anr vs Union Of India & Anr on 1 December, 2016
(iv) Pfizer Ltd. Vs. Union of India - 1996 (65) ECR 155 (Bombay)
5.2 Learned AR further submitted that amendment to Rule 11(3) ibid
merely introduced an express mechanism for reversal of credit involved in
inputs under the Rules of CCR, 2004, whereas the principle of reversal of
Cenvat/Modvat credit existed prior to it as held in the case of Chandrapur
Magnet Wires Pvt. Ltd. (supra). Further, such payment of duty by reversal
was done by the appellants as a self-motivated, unconditional action to
comply with the condition precedent to availing duty exemption under
Notification No.30/2004-C.E. dated 09.07.2004.