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SCA/26937/2006 13/ 29 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 26937 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ Sd/-
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Sd/-
====================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2.
To
be referred to the Reporter or not ?
YES
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
====================================
INDIAN
OIL CORPORATION LTD. - Petitioner
Versus
UNION
OF INDIA THR' SECRETARY & 4 - Respondents
====================================
Appearance
:
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR
HASIT DILIP DAVE for Petitioner.
MR HARIN P RAVAL for
Respondents.
====================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 26/09/2008
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The
petitioner Indian Oil Corporation Limited has filed this
petition under Article 226 of the Constitution of India praying for
an order or direction holding and declaring that the action of the
respondents of denying the refund of duty paid by the petitioner
under the order in original dated 30.11.1995 is unreasonable,
unconstitutional, inequitable, illegal and void. The petitioner has
also prayed for the order or direction quashing and setting aside
the order dated 07.11.2005 passed by the Customs, Excise &
Service Tax Appellate Tribunal (CESTAT). The petitioner has further
prayed for the direction directing the respondents to refund the
amount of Rs.1,11,93,757/- along with interest to the petitioner
forthwith.
This
Court has issued notice for final disposal on 11.03.2008. Pursuant
to the notice, Mr. Harin P. Raval, learned Assistant Solicitor
General appeared for the respondents and filed affidavit-in-reply of
Binod Kumar Gupta, Deputy Commissioner, Central Excise &
Customs, Division-IV, Vadodara-I, on behalf of respondent Nos.3 to
5.
The
case of the petitioner is that the petitioner was following the
procedure under Rules 156A and 156B of the Central Excise Rules,
1944 for removal of its petroleum products from its refinery /
warehouse to other warehouses. As per Rule 156A, consignees had to
dispatch duly endorsed rewarehousing certificates / triplicate
application to the petitioner / consignor who was then required to
present the same within 90 days to the authority. Rule 156B
provided that on failure to the present the same, the consignor had
to pay duty on such rewarehoused goods and was entitled to refund of
such duty on presentation of the certificate / triplicate
application.
It
is also the case of the petitioner that on 01.03.1984, Notification
No. 75/84-CE was introduced exempting, inter alia, condition that it
was proved that the goods were cleared for the intended use and that
where such use was elsewhere than in the factory of production, the
procedure set out in Chapter X of the Rules was followed. The
petitioner’s consignees were entitled to procure petroleum products
at concessional rate of duty under the said Notification against
CT-2 certificates issued by officers in charge of the consignee’s
factory. As per Chapter X, the consignee had to account for
quantities and actual use of goods so procured and in case of
failure, it had to pay the differential duty under Rule 196.
The
petitioner filed applications during the months of June to August
1993 for removal of RCO from its factory / warehouse to the
warehouses of various consignees. Since the petitioner failed to
produce triplicate AR-3A Forms within 90 days, notices were issued
proposing recovery of duty. The petitioner filed its reply and
produced CT-2 certificates. The respondent No.3 i.e. the
Commissioner of Central Excise, Vadodara passed an order in original
directing recovery of duty of Rs.1,13,52,313/- holding that although
the product was eligible for concessional duty in view of the CT-2
certificates, the petitioner had not established procurement by
proper consignees. In effect, the said order imposed a liability
upon the petitioner to pay duty under Rule 156B which was duly paid
by the petitioner.
Subsequently,
on receiving rewarehousing certificates, the petitioner filed a
refund application on 06.11.1996 under Rule 156-B along with
necessary documents. Out of abundant caution, the petitioner also
filed an appeal against the order dated 30.11.1995 before the CEGAT
and CEGAT vide its order dated 05.06.1997 dismissed the said appeal
for want of clearance from the Government of India, Committee of
disputes in pursuing the appeal, following the decision of the
Hon’ble Supreme Court in the case of Oil & Natural Gas
Commission V/s. Collector of Central Excise, 1992 (61) ELT 3 (SC).
Pursuant
to the refund application filed by the petitioner, the respondent
No.5 i.e. Assistant Commissioner of Central Excise & Customs,
issued a show-cause notice on 13.01.1997 proposing rejection of the
refund claim on the ground that some AR-3A forms were not as
required and that the petitioner had not proved that the duty had
not been recovered from buyers. The petitioner submitted its reply
stating, inter alia, that the documents indicated procurement by the
consignees and produced invoices showing that duty had not been
recovered from buyers. A dispute was raised for the first time vide
letter dated 04.03.1997 that the demand was not under Rule 156B and
that refund could be granted only after the order dated 30.11.1995
was set aside in appeal. In response to this, the petitioner
submitted that as per the order dated 30.11.1995, the cause of
payment of duty had been non-production of rewarehousing
certificates within 90 days and, therefore, on getting those
certificates, the petitioner was entitled to a refund under Rule
156B.
Being
aggrieved by the said order of the respondent No.5, the petitioner
filed an appeal before the Commissioner (Appeals) of Central Excise
who vide his order dated 30.10.1998 remanded the matter by observing
that as per Rule 156B, when duty was paid and proof of rewarehousing
was produced, the consignor was entitled to refund and that factual
details in this regard were to be verified by the adjudicating
authority. Pursuant to the order of Commissioner (Appeals), the
respondent No.4 i.e. Deputy Commissioner of Central Excise &
Customs, issued another show-cause notice on 16.05.2000 once again
proposing rejection of the claim on the ground that Rule 156B was
not applicable. The petitioner replied that the Commissioner
(Appeals) had remanded the matter for verification of relevant
documents concerning provisions of Rule 156B and hence, fresh
show-cause notice could not be issued. The matter was once again
adjudicated and the respondent No.4 vide his order dated 10.07.2000
rejected the claim by holding that Rule 156B was not applicable
since the petitioner had paid duty pursuant to the order dated
30.11.1995 and that the duty was confirmed under Rule 9 (2) read
with Section 11A on the basis that the petitioner had cleared goods
at a concessional rate not for intended use.
Being
aggrieved by the said order of the Deputy Commissioner, the
petitioner filed an appeal before the Commissioner (Appeals) who
dismissed the petitioner’s appeal vide his order dated 15.02.2001.
Being further aggrieved by the order of the Commissioner (Appeals),
the petitioner preferred appeal before the CESTAT and CESTAT also
rejected the petitioner’s appeal holding that the duty was paid
consequent to the order dated 30.11.1995 and refund could be granted
only after the said order was set aside.
Mr.
Mihir Joshi, learned Senior Counsel appearing with Mr. Hasit D.
Dave for the petitioner has submitted that the impugned order dated
07.11.2005 passed by CESTAT overlooks the fact that the order in
original dated 30.11.1995 was, in sum and substance, an order
directing recovery of duty under Rule 156B since the petitioner had
not been able to produce the rewarehousing certificates within the
prescribed time limit and the Tribunal has failed to appreciate the
fact that the show-cause notices were issued for non-production of
rewarehousing certificates under Rule 156B and while confirming the
show-cause notices, the Commissioner had merely mentioned another
provision in the order which by itself could not be said to be a
recovery / order under that provision. He has, therefore, submitted
that the impugned order of the Tribunal is completely unreasonable,
unconstitutional, irrational and illegal. He has further submitted
that the Tribunal has failed to appreciate the fact that the
petitioner could not have challenged the order dated 30.11.1995
since the demand was under Rule 156B for failure to produce
rewarehousing certificates within time and was entitled, under the
provisions of Rule 156B, to apply for refund on presentation of the
triplicate application. The impugned order is passed without any
application of mind and is arbitrary, unjust and illegal. The
action of the respondents of treating the recovery as one under Rule
9 (2) only on account of a reference to an incorrect provision in
the order in original is clearly in order to deny the benefit of
Rule 156B available to the petitioner and disallow the petitioner’s
legitimate claim to refund of duty and hence, the said action is
unreasonable, unconstitutional and high handed. By order dated
30.10.1998, the respondent No.2 had observed that as per Rule 156B,
when duty had been paid and proof of rewarehousing was produced by
the consignor, the consignor would be entitled to refund of the duty
so paid on making an application to the proper officer and had
remanded the case only for verification of the factual details in
this regard. In view of this, the entire proceedings in remand
starting from the order dated 10.07.2000 passed by the respondent
No.4 and culminating in the impugned order of the Tribunal, holding
that there was no question of granting refund since the order dated
30.11.1995 had not been set aside, are without jurisdiction and
beyond the scope of the remand. He has, therefore, submitted that
the impugned order is required to be quashed and set aside and the
respondent authorities are required to be directed to grant the
refund to the petitioner with interest forthwith.
Mr.
Harin Raval, learned Assistant Solicitor General appearing for the
respondents, on the other hand, has raised preliminary objection as
regards the maintainability of the petition. He has submitted that
the petitioner is invoking jurisdiction of this Court under Article
226 of the Constitution of India, praying for issuance of a writ of
mandamus or any other writ, order or direction holding and declaring
that the action of the respondents of denying the refund of duty
paid by the petitioner under the order in original dated 30.11.1995
is unreasonable, unconstitutional, inequitable, illegal and void.
This order was appelable order and in fact, against the said order,
appeal was filed which was also dismissed by CEGAT. The order
passed by CEGAT dated 05.06.1997 has become final and the said order
cannot be challenged after expiry of the period of more than 9
years. He has further submitted that the adjudicating authority in
his order dated 30.11.1995 recorded the following findings :-
Notification
No. 75/84-CE dated 01.03.1984 had provided the concessional rate,
subject to the condition that where use to petroleum product
specified in the said notification is elsewhere than the factory of
the production, the procedure set out in Chapter X of Central Excise
Rules, 1944 is required to be followed.
To
be eligible to claim concessional rate of duty, the petitioner had
produced CT.2 certificate in respect of the consignee, showing that
consignee held entitlement for procuring the product at concessional
rate of duty for intended use.
The
adjudicating authority referred to Chapter X of Central Excise
Rules, 1944, wherein it is stipulated under Rule 192 that the person
intending to obtain remission of duty on such goods, shall make
application for licence / registration certificate. Rule 193 also
provided that all the goods obtained under Rule 192 shall be
transported immediately from the place of procurement to the
applicant premises. It was, therefore, obvious that the goods were
to be obtained and procured by the consignee at the factory premises
of the manufacturer and goods so obtained and procured shall be
transported immediately by the consignee from the places of
procurement to the applicant premises, that is, consignees premises.
It
was found that acknowledgement in respect of the procurement had to
be obtained by the consignor and the consignor had to establish that
the consignment was procured by the proper consignee who had license
in the form L.4/Registration Certificate.
It
was also found that the consignor had to establish the procurement
of the consignments to be cleared by the consignees at their factory
premises and rest of the procedure as provided under Chapter X had
to be followed by the consignee.
On
facts, it was found that this procedure was not followed and proof
was not produced by the consignor before the proper officer to
establish the procurement. It was found that the manufacturer /
assessee, i.e. the petitioner had not stated anything about the
facts of establishing procurement of the consignment in the hands of
proper consignee and, therefore, the allegations levelled in the
show-cause notices were found to be correct.
It
was found that the consignments of R.C.O. which were assessed at
concessional rate of duty subject to condition for intended use to
the said product, were diverted to somewhere best known to the
manufacturer.
Therefore,
it was found that the petitioner had misused concession granted
under the Notification No. 75/84-CE, dated 01.03.1984 and had
cleared the goods in the guise of concessional rate of duty not for
intended use. It was, therefore, found that the duty was correctly
demanded under Rule 9 (2) read with Section 11A of the Central
Excises Salt Act, 1944.
Mr.
Raval has, therefore, submitted that in view of the above findings,
the Commissioner of Central Excise and Customs vide his order dated
30.11.1995 confirmed the duty of Rs.1,13,52,313/- demanded under the
show-cause notices under Rule 9 (2) of the Central Excise Rules,
1944 read with Section 11A (1) of Central Excises Salt Act, 1944
which was ordered to be recovered within 90 days from the date of
receipt of the said order.
Pursuant
to this order of the Commissioner of Central Excise & Customs,
the petitioner made payment of Rs.1,13,52,313/- with interest of
Rs.9,30,824/- on 02.08.1996.
Mr.
Raval has further submitted that the above order of the Commissioner
of Central Excise & Customs dated 30.11.1995 was challenged
before CEGAT. However, the said appeal of the petitioner was
dismissed on 05.06.1997 for want of approval from the Committee on
disputes. The CEGAT while dismissing the appeal, however, reserved
the liberty to the petitioner to revive the appeal, if and when such
clearance is obtained. The petitioner had never availed of this
liberty. After furnishing of the rewarehousing certificate, the
petitioner had filed refund application and after issuance of
show-cause notice, the said claim was adjudicated upon by the
Assistant Commissioner of Central Excise vide his order dated
16.04.1997, who for the reasons recorded in the said order clearly
held that application for refund of the petitioner was liable to be
and was accordingly rejected. However, since the refund could not
be sanctioned by the said authority, the said order did not preclude
the petitioner from claiming refund in case (i) they had filed an
appeal against the Order in Original of the Commissioner and (ii) if
the appellate authority decides in their favour. Subject to the
said observation, the refund was rejected. When this order was
challenged by the petitioner before the Commissioner (Appeals), the
matter was remanded and in view of the said order of remand dated
30.10.1998, the Deputy Commissioner after issuance of notice again
passed an order by the Commissioner (Appeals) on 15.02.2001 holding
that there was no infirmity in the order passed by the adjudicating
authority.
Mr.
Raval has further submitted that even the order of the Commissioner
(Appeals) was challenged before the CESTAT which was also dismissed
on 07.11.2005. The CESTAT in its order held that duty was not paid
under Rule 156B(1) of the Central Excise Rules and, therefore,
refund cannot be claimed under Rule 156B (2). It was further held
that duty was paid consequent to the order in original dated
30.11.1995 and the said order was not modified by any authority and,
therefore, refund claim was not allowable. When the said order is
challenged in the present petition, the relief claimed therein is
obviously barred on the ground of efficacious alternative statutory
remedy by way of tax appeal under Section 35G of Central Excise Act,
1944 available to the petitioner. When efficacious alternative
remedy is available, writ petition under Articles 226 & 227 of
the Constitution of India would not be maintainable. He has further
submitted that the reliefs claimed in the petition are
not grantable to the petitioner, since the order dated 30.11.1995
passed by the adjudicating authority was challenged before the CEGAT
in an appeal and the said appeal was dismissed and no further
challenge was made. He has, therefore, submitted that the
petitioner cannot be permitted to challenge the said order passed in
the year 1995. Challenge to the present order arising out of the
refund proceedings culminated in the order dated 07.11.2005 cannot
be gone into and / or questioned in a writ petition either under
Article 226 or Article 227 of the Constitution of India.
Mr.
Raval has further submitted that the petitioner is guilty of not
pointing out true and correct facts. Though the petitioner preferred
appeal before the Tribunal challenging the order dated 30.11.1995,
the same could not be proceeded with for want of necessary action,
whereas the record produced by the petitioner, more particularly,
show-cause notice dated 16.05.2000 shows clearly that vide final
order dated 05.06.1997, appeal was dismissed and thus the demand
made vide order in original stood confirmed.
Over
and above this legal submissions, Mr. Raval has further submitted
that even on merits, the petitioner is not entitled to refund as the
petitioner has not fulfilled condition of Notification No.75/84-CE
dated 01.03.1984. The department had issued show-cause notices for
recovery of the duty under Rule 9 (2) read with Section 11-A of the
Central Excise Act and accordingly, the petitioner had paid the duty
as per the order in original passed by the adjudicating authority.
It is very clear from the order dated 30.11.1995 that the petitioner
misused the concession granted under Notification dated 01.03.1984
and cleared the goods in the guise of goods enjoying benefit of
concessional rate or duty not for any intended use. Since the duty
was demanded under Rule 9 (2) read with Section 11A of the Central
Excise & Salt Act, 1944, the question of submission of
rewarehousing certificate does not arise. Since the duty was paid
in accordance with the duty confirmed under Rule 9 (2) of the Rules
read with Section 11A of the Act, in pursuance of order dated
30.11.1995, the petitioner is not entitled to any refund. He has
further submitted that before passing an order, the respondent No.4
examined the objection of remand case under Rule 156B (1) of
erstwhile Central Excise Rules and found that the duty was not paid
under the said Rule and, therefore, held that refund could not be
granted to the petitioner. He has further submitted that since the
petitioner paid duty in accordance with the order dated 30.11.1995,
which is still operative and since duty was not paid within 10 days
of remand as required, it could not be accepted that duty was paid
under Rule 156B(1) of the Rules. He has further submitted that
since the observations / directions of remand case were taken into
consideration and examined to the extent of benefit of Rule 156B or
otherwise and since it was found that though the order in original
dated 30.11.1995 passed by the Commissioner was in terms of Rule 9
(2) read with Section 11-A, it has not been set aside by the
Tribunal and hence, the entire proceedings in remand starting from
the order dated 10.07.2000 passed by the respondent No.4 and
culminating in the impugned order of the Tribunal holding that there
was no question of granting refund since the order dated 30.11.1995
had not been set aside, are not without jurisdiction nor it was
beyond the scope of remand. He has, therefore, submitted that the
petition filed by the petitioner deserves to be dismissed with cost.
Having
heard Mr. Mihir Joshi, learned Senior Counsel appearing with Mr.
Hasit Dave for the petitioner and Mr. Harin P. Raval, learned
Assistant Solicitor General appearing for the Excise Department and
having considered the orders passed by the authorities below
including that of the Tribunal in two or three rounds of
litigations, we are of the view that the respondent authorities are
not justified in denying the legitimate claim of refund of the duty
amount paid by the petitioner.
Dealing
with the preliminary objection raised by Mr. Raval against the
maintainability of the present petition, in view of the availability
of an alternative efficacious remedy of filing an appeal against the
order of CESTAT before this Court under Section 35G of the Act, we
are of the view that the position is well settled in law. It is
true that normally, High Court should not exercise its extraordinary
writ jurisdiction under Articles 226 and/or 227 of the Constitution
of India, when an alternative efficacious remedy is available to the
petitioner. But, there is no absolute ban on exercise of such
jurisdiction. When the order under challenge is without
jurisdiction, in violation of the principles of natural justice or
in contravention of any of the fundamental rights enshrined in Part
III of the Constitution of India, the High Court often comes out
from this self-imposed judicial constraint and takes up the matter
to render substantial justice, without driving out the petitioner
from pillar to post. In the present case, the Commissioner
(Appeals) in his order dated 30.10.1998, after examining the
provisions of Rules 156A and 156B of the Excise Rules, found the
order in original passed by the Assistant Commissioner of Central
Excise, rejecting the claim of refund made by the petitioner, as
unsustainable and while setting aside the said order and remanding
the case back for denovo adjudication directed to keep in mind that
only factual details are required to be verified by the
jurisdictional Assistant Commissioner.
Despite
the order of the Commissioner (Appeals), the Deputy Commissioner of
Central Excise, issued show-cause notice repeating the same reasons
for rejection of refund claim and passed an order in original on
10.07.2000 holding that the petitioner had made the payment of duty
accepting the order in original passed by the Commissioner, Vadodara
and appeal filed there against was also dismissed by CEGAT for want
of necessary approval from Committee on Disputes. He further held
that subsequent presentation of the warehousing certificates by the
petitioner was nothing but presentation of an evidence against the
order of the Commissioner confirming the demand under Rule 9 (2)
read with Section 11A of the Act and the same could not be
considered by him when the impugned order in original confirming the
demand under Rule 9 (2) was still in force. He further held that
the duty paid by the petitioner was not within 10 days of written
demand from the proper officer, or not even within 10 days of
confirmation of demands by the adjudicating authority, so the refund
was not a refund of duty paid under Rule 156B (1) where only such
duty [paid under Rule 156B (1)] was refundable under Rule 156B (2).
He accordingly rejected the refund claim of the petitioner.
This
order of the Deputy Commissioner is beyond the scope of remand. The
remand order was passed by the Commissioner (Appeals) with a
specific direction to verify the factual details with regard to the
rewarehousing documents. He was not directed to re-examine the
whole issue or even to decide the eligibility of refund claim. The
order of Commissioner (Appeals) is final as no further appeal was
preferred by the Excise Department before the CEGAT. If the
rewarehousing documents produced by the petitioner were in order,
the refund ought to have been granted to the petitioner. The Deputy
Commissioner has exceeded his jurisdiction vested in him and the
order passed by him was beyond the scope of remand. This order was
ultimately culminated in the impugned order of the CESTAT holding
that there was no question of granting refund since the order dated
30.11.1995 had not been set aside. Thus, entire proceedings in
remand starting from the order dated 10.07.2000 and all subsequent
orders are without jurisdiction and beyond the scope of remand.
This Court is, therefore, well within its power and jurisdiction to
interfere in the said orders so as to render real and substantial
justice to the petitioner.
Even
on merits, the petitioner’s case is found to be on strong footing.
The petitioner cannot be non-suited on the ground that order dated
30.11.1995 had attained finality since the appeal preferred there
against was dismissed by CEGAT way back on 05.06.1997, though on
technical ground i.e. want of approval from Committee on disputes.
As such, the petitioner was not required to file an appeal against
the order dated 30.11.1995. For abundant caution, the petitioner
filed the said appeal. So far as the order in original dated
30.11.1995 is concerned, it is in fact an order directing recovery
of duty under Rule 156B as the petitioner could not produce the
rewarehousing certificates within the prescribed period. The
show-cause notices were issued for non-production of rewarehousing
certificates. It is only because of that, the Commissioner, on
assumption, took the view that the consignments of R.C.O. which were
used at concessional rate of duty subject to condition for intended
use to the said product, were diverted to somewhere else best known
to the manufacturer. As such, there was no basis for such erroneous
finding. Even otherwise, the said finding vitiated, no sooner the
rewarehousing certificates were produced by the petitioner. The
petitioner had, therefore, rightly filed application claiming refund
of duty paid under Rule 156 (B) of the Rules, instead of challenging
the order of CEGAT or availing the benefit of liberty reserved by
the CEGAT.
Coming
to the last point raised by Mr. Raval that the refund claim was
rightly rejected by all the three authorities as the duty was paid
under Rule 9 (2) of the Rules pursuant to the order dated 30.11.1995
and not under Rule 156B (1) of the Rules, we are of the view that
there is no substance in this point and it deserves to be rejected.
The bogey of payment of duty under Rule 9 (2) is created by the
department only with a view to deny the refund to the petitioner.
The stand of the department that since the duty was not paid within
10 days from the written demand or from the confirmation of demand,
it is not the duty paid under Rule 156B (1), is absolutely erroneous
and unsustainable. Rule 156B deals with failure to present
triplicate application. Sub-Rule (1) says that if the consignor
fails to present the triplicate application to the officer in charge
of the warehouse of removal in the manner laid down in Sub-rule (4)
of 156A, and the duplicate application endorsed with the
rewarehousing certificate has also not been received by such officer
from the officer in charge of the warehouse of destination, the
consignor shall upon a written demand made by the former officer,
pay the duty leviable on such goods within ten days of the notice of
demand and if the duty is not so paid, he shall not be permitted to
make fresh removals of any warehoused goods from one warehouse to
another until duty is paid or until the triplicate application is so
presented or the duplicate application is received. A close
analysis of this sub-rule makes it clear that what would be the
consequences of non-payment of duty within 10 days of the notice of
demand. The consignor is prevented from making fresh removal of
warehoused goods from one warehouse goods to another warehouse.
However, no sooner such duty is paid or triplicate application is
presented, he is again permitted to do so. This sub-rule does not
say that the duty paid beyond the period of 10 days despite
presentation of triplicate application etc. shall never be refunded.
On the contrary, sub-rule (2) makes it further clear that where
such duty means duty paid within 10 days of notice of demand or duty
paid subsequently so as to enable the consignor to make fresh
removal of warehoused goods has been paid it shall be refunded
to the consignor either on his presentation of the triplicate
application to or on the receipt of the duplicate application by the
officer at the warehouse of removal duly endorsed as provided in
Sub-rule (3) of Rule 156A with a clarification by the officer in
charge of the warehouse of destination that the goods covered by the
application have been satisfactorily warehoused.
In
view of the above discussion, we hold that the narrow meaning
assigned to the words such duty appeared in Rule 156B (2) is
absolutely incorrect and not tenable at law. The petitioner cannot
be denied refund on such ground. We accordingly hold and declare
that the action of the respondents of denying the refund of duty
paid by the petitioner under the order in original dated 30.11.1995
is unreasonable, unconstitutional, inequitable, illegal and void.
We, therefore, quash and set aside the order dated 7.11.2005 passed
by CESTAT and allow the refund claim of the petitioner. We,
therefore, direct the respondents to refund the amount of
Rs.1,11,93,757/- along with interest at the rate at which interest
was charged and claimed from the petitioner on the delayed payment
of such duty, to the petitioner, within 30 days from the date of
receipt of writ of this Court or from the date of receipt of
certified copy of this order, whichever is earlier. It is made
clear that the amount so directed to be paid, if not paid, the
concerned Officer shall be personally liable to pay the interest so
charged for the period exceeding 30 days as indicated above.
Subject
to the aforesaid direction and observation, this petition is
accordingly allowed. Rule made absolute without any order as to
costs.
Sd/-
[K. A. PUJ, J.]
Sd/-
[RAJESH H. SHUKLA,
J.]
Savariya
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