{"id":187831,"date":"2008-09-26T00:00:00","date_gmt":"2008-09-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/whether-vs-union-on-26-september-2008"},"modified":"2018-02-28T09:56:57","modified_gmt":"2018-02-28T04:26:57","slug":"whether-vs-union-on-26-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/whether-vs-union-on-26-september-2008","title":{"rendered":"Whether vs Union on 26 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Whether vs Union on 26 September, 2008<\/div>\n
Author: K.A.Puj,&Nbsp;Honourable Mr.Justice H.Shukla,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/26937\/2006\t 13\/ 29\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 26937 of 2006\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE K.A.PUJ \t\t\tSd\/- \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE RAJESH H.SHUKLA\n\tSd\/- \n====================================\n \n\t  \n\t \n\t \n\t \n\t\t \n\t\t\t \n\t\t\t\t \n\n1.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nYES\n\t\t\t\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\t\t\t\t \n\n2.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nTo\n\t\t\t\tbe referred to the Reporter or not ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nYES\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n3.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nNO\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n4.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tthis case involves a substantial question of law as to the\n\t\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\t\tmade thereunder ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nNO\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t\t \n\n5.\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tit is to be circulated to the civil judge ?\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nNO\n\t\t\t\n\t\t\n\t\n\n \n\n====================================\n \n\nINDIAN\nOIL CORPORATION LTD. - Petitioner\n \n\nVersus\n \n\nUNION\nOF INDIA THR' SECRETARY & 4 - Respondents\n \n\n==================================== \nAppearance\n: \nMR MIHIR JOSHI, SENIOR ADVOCATE WITH MR\nHASIT DILIP DAVE for Petitioner. \nMR HARIN P RAVAL for\nRespondents. \n====================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.A.PUJ\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 26\/09\/2008 \nORAL JUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE K.A.PUJ)<\/p>\n
\tThe
\n\tpetitioner   Indian Oil Corporation Limited has filed this
\n\tpetition under Article 226 of the Constitution of India praying for
\n\tan order or direction holding and declaring that the action of the
\n\trespondents of denying the refund of duty paid by the petitioner
\n\tunder the order in original dated 30.11.1995 is unreasonable,
\n\tunconstitutional, inequitable, illegal and void.  The petitioner has
\n\talso prayed for the order or direction quashing and setting aside
\n\tthe order dated 07.11.2005 passed by the Customs, Excise &
\n\tService Tax Appellate Tribunal (CESTAT).  The petitioner has further
\n\tprayed for the direction directing the respondents to refund the
\n\tamount of Rs.1,11,93,757\/- along with interest to the petitioner
\n\tforthwith.\n<\/p>\n
\tThis
\n\tCourt has issued notice for final disposal on 11.03.2008.  Pursuant
\n\tto the notice, Mr. Harin P. Raval, learned Assistant Solicitor
\n\tGeneral appeared for the respondents and filed affidavit-in-reply of
\n\tBinod Kumar Gupta, Deputy Commissioner, Central Excise &
\n\tCustoms, Division-IV, Vadodara-I, on behalf of respondent Nos.3 to\n<\/p>\n
\t5.<\/p>\n
\tThe
\n\tcase of the petitioner is that the petitioner was following the
\n\tprocedure under Rules 156A and 156B of the Central Excise Rules,
\n\t1944 for removal of its petroleum products from its refinery \/
\n\twarehouse to other warehouses.  As per Rule 156A, consignees had to
\n\tdispatch duly endorsed rewarehousing certificates \/ triplicate
\n\tapplication to the petitioner \/ consignor who was then required to
\n\tpresent the same within 90 days to the authority.  Rule 156B
\n\tprovided that on failure to the present the same, the consignor had
\n\tto pay duty on such rewarehoused goods and was entitled to refund of
\n\tsuch duty on presentation of the certificate \/ triplicate
\n\tapplication.\n<\/p>\n
\tIt
\n\tis also the case of the petitioner that on 01.03.1984, Notification
\n\tNo. 75\/84-CE was introduced exempting, inter alia, condition that it
\n\twas proved that the goods were cleared for the intended use and that
\n\twhere such use was elsewhere than in the factory of production, the
\n\tprocedure set out in Chapter X of the Rules was followed.  The
\n\tpetitioner’s consignees were entitled to procure petroleum products
\n\tat concessional rate of duty under the said Notification against
\n\tCT-2 certificates issued by officers in charge of the consignee’s
\n\tfactory.  As per Chapter X, the consignee had to account for
\n\tquantities and actual use of goods so procured and in case of
\n\tfailure, it had to pay the differential duty under Rule 196.\n<\/p>\n
\tThe
\n\tpetitioner filed applications during the months of June to August
\n\t1993 for removal of RCO from its factory \/ warehouse to the
\n\twarehouses of various consignees.  Since the petitioner failed to
\n\tproduce triplicate AR-3A Forms within 90 days, notices were issued
\n\tproposing recovery of duty.  The petitioner filed its reply and
\n\tproduced CT-2 certificates.  The respondent No.3 i.e. the
\n\tCommissioner of Central Excise, Vadodara passed an order in original
\n\tdirecting recovery of duty of Rs.1,13,52,313\/- holding that although
\n\tthe product was eligible for concessional duty in view of the CT-2
\n\tcertificates, the petitioner had not established procurement by
\n\tproper consignees.  In effect, the said order imposed a liability
\n\tupon the petitioner to pay duty under Rule 156B which was duly paid
\n\tby the petitioner.\n<\/p>\n
\tSubsequently,
\n\ton receiving rewarehousing certificates, the petitioner filed a
\n\trefund application on 06.11.1996 under Rule 156-B along with
\n\tnecessary documents.  Out of abundant caution, the petitioner also
\n\tfiled an appeal against the order dated 30.11.1995 before the CEGAT
\n\tand CEGAT vide its order dated 05.06.1997 dismissed the said appeal
\n\tfor want of clearance from the Government of India, Committee of
\n\tdisputes in pursuing the appeal, following the decision of the
\n\tHon’ble Supreme Court in the case of Oil & Natural Gas
\n\tCommission V\/s. Collector of Central Excise, 1992 (61) ELT 3 (SC).\n<\/p>\n
\tPursuant
\n\tto the refund application filed by the petitioner, the respondent
\n\tNo.5 i.e. Assistant Commissioner of Central Excise & Customs,
\n\tissued a show-cause notice on 13.01.1997  proposing rejection of the
\n\trefund claim on the ground that some AR-3A forms were not as
\n\trequired and that the petitioner had not proved that the duty had
\n\tnot been recovered from buyers.  The petitioner submitted its reply
\n\tstating, inter alia, that the documents indicated procurement by the
\n\tconsignees and produced invoices showing that duty had not been
\n\trecovered from buyers.  A dispute was raised for the first time vide
\n\tletter dated 04.03.1997 that the demand was not under Rule 156B and
\n\tthat refund could be granted only after the order dated 30.11.1995
\n\twas set aside in appeal.  In response to this, the petitioner
\n\tsubmitted that as per the order dated 30.11.1995, the cause of
\n\tpayment of duty had been non-production of rewarehousing
\n\tcertificates within 90 days and, therefore, on getting those
\n\tcertificates, the petitioner was entitled to a refund under Rule
\n\t156B.\n<\/p>\n
\tBeing
\n\taggrieved by the said order of the respondent No.5, the petitioner
\n\tfiled an appeal before the Commissioner (Appeals) of Central Excise
\n\twho vide his order dated 30.10.1998 remanded the matter by observing
\n\tthat as per Rule 156B, when duty was paid and proof of rewarehousing
\n\twas produced, the consignor was entitled to refund and that factual
\n\tdetails in this regard were to be verified by the adjudicating
\n\tauthority.  Pursuant to the order of Commissioner (Appeals), the
\n\trespondent No.4 i.e. Deputy Commissioner of Central Excise &
\n\tCustoms, issued another show-cause notice on 16.05.2000 once again
\n\tproposing rejection of the claim on the ground that Rule 156B was
\n\tnot applicable.  The petitioner replied that the Commissioner
\n\t(Appeals) had remanded the matter for verification of relevant
\n\tdocuments concerning provisions of Rule 156B and hence, fresh
\n\tshow-cause notice could not be issued.  The matter was once again
\n\tadjudicated and the respondent No.4 vide his order dated 10.07.2000
\n\trejected the claim by holding that Rule 156B was not applicable
\n\tsince the petitioner had paid duty pursuant to the order dated
\n\t30.11.1995 and that the duty was confirmed under Rule 9 (2) read
\n\twith Section 11A on the basis that the petitioner had cleared goods
\n\tat a concessional rate not for intended use.\n<\/p>\n
\tBeing
\n\taggrieved by the said order of the Deputy Commissioner, the
\n\tpetitioner filed an appeal before the Commissioner (Appeals) who
\n\tdismissed the petitioner’s appeal vide his order dated 15.02.2001.
\n\tBeing further aggrieved by the order of the Commissioner (Appeals),
\n\tthe petitioner preferred appeal before the CESTAT and CESTAT also
\n\trejected the petitioner’s appeal holding that the duty was paid
\n\tconsequent to the order dated 30.11.1995 and refund could be granted
\n\tonly after the said order was set aside.\n<\/p>\n
\tMr.\n<\/p>\n
\tMihir Joshi, learned Senior Counsel appearing with Mr. Hasit  D.
\n\tDave for the petitioner has submitted that the impugned order dated
\n\t07.11.2005 passed by CESTAT overlooks the fact that the order in
\n\toriginal dated 30.11.1995 was, in sum and substance, an order
\n\tdirecting recovery of duty under Rule 156B since the petitioner had
\n\tnot been able to produce the rewarehousing certificates within the
\n\tprescribed time limit and the Tribunal has failed to appreciate the
\n\tfact that the show-cause notices were issued for non-production of
\n\trewarehousing certificates under Rule 156B and while confirming the
\n\tshow-cause notices, the Commissioner had merely mentioned another
\n\tprovision in the order which by itself could not be said to be a
\n\trecovery \/ order under that provision.  He has, therefore, submitted
\n\tthat the impugned order of the Tribunal is completely unreasonable,
\n\tunconstitutional, irrational and illegal.  He has further submitted
\n\tthat the Tribunal has failed to appreciate the fact that the
\n\tpetitioner could not have challenged the order dated 30.11.1995
\n\tsince the demand was under Rule 156B for failure to produce
\n\trewarehousing certificates within time and was entitled, under the
\n\tprovisions of Rule 156B, to apply for refund on presentation of the
\n\ttriplicate application.  The impugned order is passed without any
\n\tapplication of mind and is arbitrary, unjust and illegal.  The
\n\taction of the respondents of treating the recovery as one under Rule
\n\t9 (2) only on account of a reference to an incorrect provision in
\n\tthe order in original is clearly in order to deny the benefit of
\n\tRule 156B available to the petitioner and disallow the petitioner’s
\n\tlegitimate claim to refund of duty and hence, the said action is
\n\tunreasonable, unconstitutional and high handed.  By order dated
\n\t30.10.1998, the respondent No.2 had observed that as per Rule 156B,
\n\twhen duty had been paid and proof of rewarehousing was produced by
\n\tthe consignor, the consignor would be entitled to refund of the duty
\n\tso paid on making an application to the proper officer and had
\n\tremanded the case only for verification of the factual details in
\n\tthis regard.  In view of this, the entire proceedings in remand
\n\tstarting from the order dated 10.07.2000 passed by the respondent
\n\tNo.4 and culminating in the impugned order of the Tribunal, holding
\n\tthat there was no question of granting refund since the order dated
\n\t30.11.1995 had not been set aside, are without jurisdiction and
\n\tbeyond the scope of the remand.  He has, therefore, submitted that
\n\tthe impugned order is required to be quashed and set aside and the
\n\trespondent authorities are required to be directed to grant the
\n\trefund to the petitioner with interest forthwith.\n<\/p>\n
\tMr.\n<\/p>\n
\tHarin Raval, learned Assistant Solicitor General appearing for the
\n\trespondents, on the other hand, has raised preliminary objection as
\n\tregards the maintainability of the petition.  He has submitted that
\n\tthe petitioner is invoking jurisdiction of this Court under Article
\n\t226 of the Constitution of India, praying for issuance of a writ of
\n\tmandamus or any other writ, order or direction holding and declaring
\n\tthat the action of the respondents of denying the refund of duty
\n\tpaid by the petitioner under the order in original dated 30.11.1995
\n\tis unreasonable, unconstitutional, inequitable, illegal and void.
\n\tThis order was appelable order and in fact, against the said order,
\n\tappeal was filed which was also dismissed by CEGAT.  The order
\n\tpassed by CEGAT dated 05.06.1997 has become final and the said order
\n\tcannot be challenged after expiry of the period of more than 9
\n\tyears.  He has further submitted that the adjudicating authority in
\n\this order dated 30.11.1995 recorded the following findings :-\n<\/p>\n
\tNotification
\n\tNo. 75\/84-CE dated 01.03.1984 had provided the concessional rate,
\n\tsubject to the condition that where use to petroleum product
\n\tspecified in the said notification is elsewhere than the factory of
\n\tthe production, the procedure set out in Chapter X of Central Excise
\n\tRules, 1944 is required to be followed.\n<\/p>\n
\tTo
\n\tbe eligible to claim concessional rate of duty, the petitioner had
\n\tproduced CT.2 certificate in respect of the consignee, showing that
\n\tconsignee held entitlement for procuring the product at concessional
\n\trate of duty for intended use.\n<\/p>\n
\tThe
\n\tadjudicating authority referred to Chapter X of Central Excise
\n\tRules, 1944, wherein it is stipulated under Rule 192 that the person
\n\tintending to obtain remission of duty on such goods, shall make
\n\tapplication for licence \/ registration certificate.  Rule 193 also
\n\tprovided that all the goods obtained under Rule 192 shall be
\n\ttransported immediately from the place of procurement to the
\n\tapplicant premises.  It was, therefore, obvious that the goods were
\n\tto be obtained and procured by the consignee at the factory premises
\n\tof the manufacturer and goods so obtained and procured shall be
\n\ttransported immediately by the consignee from the places of
\n\tprocurement to the applicant premises, that is, consignees premises.\n<\/p>\n
\tIt
\n\twas found that acknowledgement in respect of the procurement had to
\n\tbe obtained by the consignor and the consignor had to establish that
\n\tthe consignment was procured by the proper consignee who had license
\n\tin the form L.4\/Registration Certificate.\n<\/p>\n
\tIt
\n\twas also found that the consignor had to establish the procurement
\n\tof the consignments to be cleared by the consignees at their factory
\n\tpremises and rest of the procedure as provided under Chapter X had
\n\tto be followed by the consignee.\n<\/p>\n
\tOn
\n\tfacts, it was found that this procedure was not followed and proof
\n\twas not produced by the consignor before the proper officer to
\n\testablish the procurement.  It was found that the manufacturer \/
\n\tassessee, i.e. the petitioner had not stated anything about the
\n\tfacts of establishing procurement of the consignment in the hands of
\n\tproper consignee and, therefore, the allegations levelled in the
\n\tshow-cause notices were found to be correct.\n<\/p>\n
\tIt
\n\twas found that the consignments of R.C.O. which were assessed at
\n\tconcessional rate of duty subject to condition for intended use to
\n\tthe said product, were diverted to somewhere best known to the
\n\tmanufacturer.\n<\/p>\n
\tTherefore,
\n\tit was found that the petitioner had misused concession granted
\n\tunder the Notification No. 75\/84-CE, dated 01.03.1984 and had
\n\tcleared the goods in the guise of concessional rate of duty not for
\n\tintended use.  It was, therefore, found that the duty was correctly
\n\tdemanded under Rule 9 (2) read with Section 11A of the Central
\n\tExcises Salt Act, 1944.\n<\/p>\n
\tMr.\n<\/p>\n
\tRaval has, therefore, submitted that in view of the above findings,
\n\tthe Commissioner of Central Excise and Customs vide his order dated
\n\t30.11.1995 confirmed the duty of Rs.1,13,52,313\/- demanded under the
\n\tshow-cause notices under Rule 9 (2) of the Central Excise Rules,
\n\t1944 read with Section 11A (1) of Central Excises Salt Act, 1944
\n\twhich was ordered to be recovered within 90 days from the date of
\n\treceipt of the said order.\n<\/p>\n
\tPursuant
\n\tto this order of the Commissioner of Central Excise & Customs,
\n\tthe petitioner made payment of Rs.1,13,52,313\/- with interest of
\n\tRs.9,30,824\/- on 02.08.1996.\n<\/p>\n
\tMr.\n<\/p>\n
\tRaval has further submitted that the above order of the Commissioner
\n\tof Central Excise & Customs dated 30.11.1995 was challenged
\n\tbefore CEGAT. However, the said appeal of the petitioner was
\n\tdismissed on 05.06.1997 for want of approval from the Committee on
\n\tdisputes.  The CEGAT while dismissing the appeal, however, reserved
\n\tthe liberty to the petitioner to revive the appeal, if and when such
\n\tclearance is obtained.  The petitioner had never availed of this
\n\tliberty.  After furnishing of the rewarehousing certificate, the
\n\tpetitioner had filed refund application and after issuance of
\n\tshow-cause notice, the said claim was adjudicated upon by the
\n\tAssistant Commissioner of Central Excise vide his order dated
\n\t16.04.1997, who for the reasons recorded in the said order clearly
\n\theld that application for refund of the petitioner was liable to be
\n\tand was accordingly rejected.  However, since the refund could not
\n\tbe sanctioned by the said authority, the said order did not preclude
\n\tthe petitioner from claiming refund in case (i) they had filed an
\n\tappeal against the Order in Original of the Commissioner and (ii) if
\n\tthe appellate authority decides in their favour.  Subject to the
\n\tsaid observation, the refund was rejected.  When this order was
\n\tchallenged by the petitioner before the Commissioner (Appeals), the
\n\tmatter was remanded and in view of the said order of remand dated
\n\t30.10.1998, the Deputy Commissioner after issuance of notice again
\n\tpassed an order by the Commissioner (Appeals) on 15.02.2001 holding
\n\tthat there was no infirmity in the order passed by the adjudicating
\n\tauthority.\n<\/p>\n
\tMr.\n<\/p>\n
\tRaval has further submitted that even the order of the Commissioner
\n\t(Appeals) was challenged before the CESTAT which was also dismissed
\n\ton 07.11.2005.  The CESTAT in its order held that duty was not paid
\n\tunder Rule 156B(1) of the Central Excise Rules and, therefore,
\n\trefund cannot be claimed under Rule 156B (2).  It was further held
\n\tthat duty was paid consequent to the order in original dated
\n\t30.11.1995 and the said order was not modified by any authority and,
\n\ttherefore, refund claim was not allowable.  When the said order is
\n\tchallenged in the present petition, the relief claimed therein is
\n\tobviously barred on the ground of efficacious alternative statutory
\n\tremedy by way of tax appeal under Section 35G of Central Excise Act,
\n\t1944 available to the petitioner.  When efficacious alternative
\n\tremedy is available, writ petition under Articles 226 & 227 of
\n\tthe Constitution of India would not be maintainable.  He has further
\n\tsubmitted that               the reliefs claimed in the petition are
\n\tnot grantable to the petitioner, since the order dated 30.11.1995
\n\tpassed by the adjudicating authority was challenged before the CEGAT
\n\tin an appeal and the said appeal was dismissed and no further
\n\tchallenge was made.  He has, therefore, submitted that the
\n\tpetitioner cannot be permitted to challenge the said order passed in
\n\tthe year 1995.  Challenge to the present order arising out of the
\n\trefund proceedings culminated in the order dated 07.11.2005 cannot
\n\tbe gone into and \/ or questioned in a writ petition either under
\n\tArticle 226 or Article 227 of the Constitution of India.\n<\/p>\n
\tMr.\n<\/p>\n
\tRaval has further submitted that the petitioner is guilty of not
\n\tpointing out true and correct facts. Though the petitioner preferred
\n\tappeal before the Tribunal challenging the order dated 30.11.1995,
\n\tthe same could not be proceeded with for want of necessary action,
\n\twhereas the record produced by the petitioner, more particularly,
\n\tshow-cause notice dated 16.05.2000 shows clearly that vide final
\n\torder dated 05.06.1997, appeal was dismissed and thus the demand
\n\tmade vide order in original stood confirmed.\n<\/p>\n
\tOver
\n\tand above this legal submissions, Mr. Raval has further submitted
\n\tthat even on merits, the petitioner is not entitled to refund as the
\n\tpetitioner has not fulfilled condition of Notification No.75\/84-CE
\n\tdated 01.03.1984.  The department had issued show-cause notices for
\n\trecovery of the duty under Rule 9 (2) read with Section 11-A of the
\n\tCentral Excise Act and accordingly, the petitioner had paid the duty
\n\tas per the order in original passed by the adjudicating authority.
\n\tIt is very clear from the order dated 30.11.1995 that the petitioner
\n\tmisused the concession granted under Notification dated 01.03.1984
\n\tand cleared the goods in the guise of goods enjoying benefit of
\n\tconcessional rate or duty not for any intended use.  Since the duty
\n\twas demanded under Rule 9 (2) read with Section 11A of the Central
\n\tExcise & Salt Act, 1944, the question of submission of
\n\trewarehousing certificate does not arise.  Since the duty was paid
\n\tin accordance with the duty confirmed under Rule 9 (2) of the Rules
\n\tread with Section 11A of the Act, in pursuance of order dated
\n\t30.11.1995, the petitioner is not entitled to any refund.  He has
\n\tfurther submitted that before passing an order, the respondent No.4
\n\texamined the objection of remand case under Rule 156B (1) of
\n\terstwhile Central Excise Rules and found that the duty was not paid
\n\tunder the said Rule and, therefore, held that refund could not be
\n\tgranted to the petitioner.  He has further submitted that since the
\n\tpetitioner paid duty in accordance with the order dated 30.11.1995,
\n\twhich is still operative and since duty was not paid within 10 days
\n\tof remand as required, it could not be accepted that duty was paid
\n\tunder Rule 156B(1) of the Rules.  He has further submitted that
\n\tsince the observations \/ directions of remand case were taken into
\n\tconsideration and examined to the extent of benefit of Rule 156B or
\n\totherwise and since it was found that though the order in original
\n\tdated 30.11.1995 passed by the Commissioner was in terms of Rule 9
\n\t(2) read with Section 11-A, it has not been set aside by the
\n\tTribunal and hence, the entire proceedings in remand starting from
\n\tthe order dated 10.07.2000 passed by the respondent No.4 and
\n\tculminating in the impugned order of the Tribunal holding that there
\n\twas no question of granting refund since the order dated 30.11.1995
\n\thad not been set aside, are not without jurisdiction nor it was
\n\tbeyond the scope of remand.  He has, therefore, submitted that the
\n\tpetition filed by the petitioner deserves to be dismissed with cost.\n<\/p>\n
\tHaving
\n\theard Mr. Mihir Joshi, learned Senior Counsel appearing with Mr.
\n\tHasit Dave for the petitioner and Mr. Harin P. Raval, learned
\n\tAssistant Solicitor General appearing for the Excise Department and
\n\thaving considered the orders passed by the authorities below
\n\tincluding that of the Tribunal in two or three rounds of
\n\tlitigations, we are of the view that the respondent authorities are
\n\tnot justified in denying the legitimate claim of refund of the duty
\n\tamount paid by the petitioner.\n<\/p>\n
\tDealing
\n\twith the preliminary objection raised by Mr. Raval against the
\n\tmaintainability of the present petition, in view of the availability
\n\tof an alternative efficacious remedy of filing an appeal against the
\n\torder of CESTAT before this Court under Section 35G of the Act, we
\n\tare of the view that the position is well settled in law.  It is
\n\ttrue that normally, High Court should not exercise its extraordinary
\n\twrit jurisdiction under Articles 226 and\/or 227 of the Constitution
\n\tof India, when an alternative efficacious remedy is available to the
\n\tpetitioner.  But, there is no absolute ban on exercise of such
\n\tjurisdiction.  When the order under challenge is without
\n\tjurisdiction, in violation of the principles of natural justice or
\n\tin contravention of any of the fundamental rights enshrined in Part
\n\tIII of the Constitution of India, the High Court often comes out
\n\tfrom this self-imposed judicial constraint and takes up the matter
\n\tto render substantial justice, without driving out the petitioner
\n\tfrom pillar to post.  In the present case, the Commissioner
\n\t(Appeals) in his order dated 30.10.1998, after examining the
\n\tprovisions of Rules 156A and 156B of the Excise Rules, found the
\n\torder in original passed by the Assistant Commissioner of Central
\n\tExcise, rejecting the claim of refund made by the petitioner, as
\n\tunsustainable and while setting aside the said order and remanding
\n\tthe case back for denovo adjudication directed to keep in mind that
\n\tonly factual details are required to be verified by the
\n\tjurisdictional Assistant Commissioner.\n<\/p>\n
\tDespite
\n\tthe order of the Commissioner (Appeals), the Deputy Commissioner of
\n\tCentral Excise, issued show-cause notice repeating the same reasons
\n\tfor rejection of refund claim and passed an order in original on
\n\t10.07.2000 holding that the petitioner had made the payment of duty
\n\taccepting the order in original passed by the Commissioner, Vadodara
\n\tand appeal filed there against was also dismissed by CEGAT for want
\n\tof necessary approval from Committee on Disputes.  He further held
\n\tthat subsequent presentation of the warehousing certificates by the
\n\tpetitioner was nothing but presentation of an evidence against the
\n\torder of the Commissioner confirming the demand under Rule 9 (2)
\n\tread with Section 11A of the Act and the same could not be
\n\tconsidered by him when the impugned order in original confirming the
\n\tdemand under Rule 9 (2) was still in force.  He further held that
\n\tthe duty paid by the petitioner was not within 10 days of written
\n\tdemand from the proper officer, or not even within 10 days of
\n\tconfirmation of demands by the adjudicating authority, so the refund
\n\twas not a refund of duty paid under Rule 156B (1) where only such
\n\tduty [paid under Rule 156B (1)] was refundable under Rule 156B (2).
\n\tHe accordingly rejected the refund claim of the petitioner.\n<\/p>\n
\tThis
\n\torder of the Deputy Commissioner is beyond the scope of remand.  The
\n\tremand order was passed by the Commissioner (Appeals) with a
\n\tspecific direction to verify the factual details with regard to the
\n\trewarehousing documents.  He was not directed to re-examine the
\n\twhole issue or even to decide the eligibility of refund claim.  The
\n\torder of Commissioner (Appeals) is final as no further appeal was
\n\tpreferred by the Excise Department before the CEGAT.  If the
\n\trewarehousing documents produced by the petitioner were in order,
\n\tthe refund ought to have been granted to the petitioner.  The Deputy
\n\tCommissioner has exceeded his jurisdiction vested in him and the
\n\torder passed by him was beyond the scope of remand.  This order was
\n\tultimately culminated in the impugned order of the CESTAT holding
\n\tthat there was no question of granting refund since the order dated
\n\t30.11.1995 had not been set aside.  Thus, entire proceedings in
\n\tremand starting from the order dated 10.07.2000 and all subsequent
\n\torders are without jurisdiction and beyond the scope of remand.
\n\tThis Court is, therefore, well within its power and jurisdiction to
\n\tinterfere in the said orders so as to render real and substantial
\n\tjustice to the petitioner.\n<\/p>\n
\tEven
\n\ton merits, the petitioner’s case is found to be on strong footing.
\n\tThe petitioner cannot be non-suited on the ground that order dated
\n\t30.11.1995 had attained finality since the appeal preferred there
\n\tagainst was dismissed by CEGAT way back on 05.06.1997, though on
\n\ttechnical ground i.e. want of approval from Committee on disputes.
\n\tAs such, the petitioner was not required to file an appeal against
\n\tthe order dated 30.11.1995.  For abundant caution, the petitioner
\n\tfiled the said appeal.  So far as the order in original dated
\n\t30.11.1995 is concerned, it is in fact an order directing recovery
\n\tof duty under Rule 156B as the petitioner could not produce the
\n\trewarehousing certificates within the prescribed period.  The
\n\tshow-cause notices were issued for non-production of rewarehousing
\n\tcertificates.  It is only because of that, the Commissioner, on
\n\tassumption, took the view that the consignments of R.C.O. which were
\n\tused at concessional rate of duty subject to condition for intended
\n\tuse to the said product, were diverted to somewhere else best known
\n\tto the manufacturer.  As such, there was no basis for such erroneous
\n\tfinding.  Even otherwise, the said finding vitiated, no sooner the
\n\trewarehousing certificates were produced by the petitioner.  The
\n\tpetitioner had, therefore, rightly filed application claiming refund
\n\tof duty paid under Rule 156 (B) of the Rules, instead of challenging
\n\tthe order of CEGAT or availing the benefit of liberty reserved by
\n\tthe CEGAT.\n<\/p>\n
\tComing
\n\tto the last point raised by Mr. Raval that the refund claim was
\n\trightly rejected by all the three authorities as the duty was paid
\n\tunder Rule 9 (2) of the Rules pursuant to the order dated 30.11.1995
\n\tand not under Rule 156B (1) of the Rules, we are of the view that
\n\tthere is no substance in this point and it deserves to be rejected.
\n\tThe bogey of payment of duty under Rule 9 (2) is created by the
\n\tdepartment only with a view to deny the refund to the petitioner.
\n\tThe stand of the department that since the duty was not paid within
\n\t10 days from the written demand or from the confirmation of demand,
\n\tit is not the duty paid under Rule 156B (1), is absolutely erroneous
\n\tand unsustainable.  Rule 156B deals with failure to present
\n\ttriplicate application.  Sub-Rule (1) says that if the consignor
\n\tfails to present the triplicate application to the officer in charge
\n\tof the warehouse of removal in the manner laid down in Sub-rule (4)
\n\tof 156A, and the duplicate application endorsed with the
\n\trewarehousing certificate has also not been received by such officer
\n\tfrom the officer in charge of the warehouse of destination, the
\n\tconsignor shall upon a written demand made by the former officer,
\n\tpay the duty leviable on such goods within ten days of the notice of
\n\tdemand and if the duty is not so paid, he shall not be permitted to
\n\tmake fresh removals of any warehoused goods from one warehouse to
\n\tanother until duty is paid or until the triplicate application is so
\n\tpresented or the duplicate application is received.  A close
\n\tanalysis of this sub-rule makes it clear that what would be the
\n\tconsequences of non-payment of duty within 10 days of the notice of
\n\tdemand.  The consignor is prevented from making fresh removal of
\n\twarehoused goods from one warehouse goods to another warehouse.
\n\tHowever, no sooner such duty is paid or triplicate application is
\n\tpresented, he is again permitted to do so.  This sub-rule does not
\n\tsay that the duty paid beyond the period of 10 days despite
\n\tpresentation of triplicate application etc. shall never be refunded.
\n\t On the contrary, sub-rule (2) makes it further clear that where
\n\tsuch duty means duty paid within 10 days of notice of demand or duty
\n\tpaid subsequently so as to enable the consignor to make fresh
\n\tremoval of warehoused goods   has been paid it shall be refunded
\n\tto the consignor either on his presentation of the triplicate
\n\tapplication to or on the receipt of the duplicate application by the
\n\tofficer at the warehouse of removal duly endorsed as provided in
\n\tSub-rule (3) of Rule 156A with a clarification by the officer in
\n\tcharge of the warehouse of destination that the goods covered by the
\n\tapplication have been satisfactorily warehoused.\n<\/p>\n
\tIn
\n\tview of the above discussion, we hold that the narrow meaning
\n\tassigned to the words  such duty  appeared in Rule 156B (2) is
\n\tabsolutely incorrect and not tenable at law.  The petitioner cannot
\n\tbe denied refund on such ground.  We accordingly hold and declare
\n\tthat the action of the respondents of denying the refund of duty
\n\tpaid by the petitioner under the order in original dated 30.11.1995
\n\tis unreasonable, unconstitutional, inequitable, illegal and void.
\n\tWe, therefore, quash and set aside the order dated 7.11.2005 passed
\n\tby CESTAT and allow the refund claim of the petitioner.  We,
\n\ttherefore, direct the respondents to refund the amount of
\n\tRs.1,11,93,757\/- along with interest at the rate at which interest
\n\twas charged and claimed from the petitioner on the delayed payment
\n\tof such duty, to the petitioner, within 30 days from the date of
\n\treceipt of writ of this Court or from the date of receipt of
\n\tcertified copy of this order, whichever is earlier.  It is made
\n\tclear that the amount so directed to be paid, if not paid, the
\n\tconcerned Officer shall be personally liable to pay the interest so
\n\tcharged for the period exceeding 30 days as indicated above.\n<\/p>\n
\tSubject
\n\tto the aforesaid direction and observation, this petition is
\n\taccordingly allowed.  Rule made absolute without any order as to
\n\tcosts.\n<\/p>\n
\t\t\t\t\t\t\tSd\/-\n<\/p>\n
\t\t\t\t\t\t[K. A. PUJ, J.]\t\t<\/p>\n
\t\t\t\t\t\t\t\tSd\/-\n<\/p>\n
\t\t\t\t\t\t[RAJESH H. SHUKLA,
\nJ.]<\/p>\n
Savariya         <\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Whether vs Union on 26 September, 2008 Author: K.A.Puj,&Nbsp;Honourable Mr.Justice H.Shukla,&Nbsp; Gujarat High Court Case Information System Print 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-187831","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nWhether vs Union on 26 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/whether-vs-union-on-26-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Whether vs Union on 26 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/whether-vs-union-on-26-september-2008\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2008-09-25T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-02-28T04:26:57+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"25 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/whether-vs-union-on-26-september-2008#article\",\"isPartOf\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/whether-vs-union-on-26-september-2008\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Whether vs Union on 26 September, 2008\",\"datePublished\":\"2008-09-25T18:30:00+00:00\",\"dateModified\":\"2018-02-28T04:26:57+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/whether-vs-union-on-26-september-2008\"},\"wordCount\":4807,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#organization\"},\"articleSection\":[\"Gujarat High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\/\/www.legalindia.com\/judgments\/whether-vs-union-on-26-september-2008#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/whether-vs-union-on-26-september-2008\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/whether-vs-union-on-26-september-2008\",\"name\":\"Whether vs Union on 26 September, 2008 - 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