Skip to content


Manoj TIn Containers Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtMadhya Pradesh High Court
Decided On
Case NumberPetition No. 163/83
Judge
Reported in1984(2)ECC286; 1985LC214(MP); 1987(11)LC154(MP); 1984(15)ELT80(MP)
ActsConstitution of India - Articles 226 and 227
AppellantManoj TIn Containers
RespondentUnion of India and anr.
Appellant AdvocateO.P. Dubey, Adv.
Respondent AdvocateB.G. Nema, Adv.
DispositionPetition allowed
Excerpt:
ce t/i 46; ce notfn. no. 97/70-ce. - order directing recovery of amount refunded legally is without jurisdiction. - indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is..........it was held that the exemption was applicable to the petitioner. in the meantime, the petitioner paid duty on similar clearances between 10-5-1976 and 8-11-1976. after the decision of the show cause notice in favour of the petitioner, the petitioner applied for refund of rs. 8,547.45 paid by it as tax between 10-5-1976 and 8-11-1976. the respondent no. 2 refunded the amount of duty so paid by the petitioner. thereafter, on 3-3-1981, the respondent no. 2 issued a notice (annexure 'a') to the petitioner asking him to show cause why the said amount of rs. 8,547.45 refunded to the petitioner should not be recovered from him because it was erroneously refunded to the petitioner. the petitioner should cause and contended that the refund was rightly granted to it and there was no legal ground.....
Judgment:

R.K. Vijaywargiya, J.

1. This petition under Articles 226 and 227 of the Constitution of India arises out of the following facts :

The petitioner is a partnership firm and carries on business of manufacture and sale of metal containers covered under Item 46 of Central Excise Tariff and as such is an assessee for the purpose of the Central Excise. The petitioner cleared the goods between 1-4-1976 and 29-4-1976 on nil duty claiming exemption from duty under Notification No. 97/70, dated 1-5-1970. The respondent No. 2 issued a notice to the petitioner to show cause why a sum of Rs. 6,452 66 be not recovered from it on the ground that the aforesaid notification was not applicable to the petitioner. The petitioner showed cause. After hearing the petitioner the said notice was withdrawn and it was held that the exemption was applicable to the petitioner. In the meantime, the petitioner paid duty on similar clearances between 10-5-1976 and 8-11-1976. After the decision of the show cause notice in favour of the petitioner, the petitioner applied for refund of Rs. 8,547.45 paid by it as tax between 10-5-1976 and 8-11-1976. The respondent No. 2 refunded the amount of duty so paid by the petitioner. Thereafter, on 3-3-1981, the respondent No. 2 issued a notice (Annexure 'A') to the petitioner asking him to show cause why the said amount of Rs. 8,547.45 refunded to the petitioner should not be recovered from him because it was erroneously refunded to the petitioner. The petitioner should cause and contended that the refund was rightly granted to it and there was no legal ground for recovering the said amount from the petitioner. By order dated 14-12-1981 (Annexure 'C') the respondent No. 2 directed the petitioner to re-deposit the said amount. The petitioner in this petition has assailed the notice (Annexure 'A') and the subsequent proceedings including the order passed by the respondent No. 2 directing the petitioner to re-deposit the said amount on the ground that the respondent No. 2 had no jurisdiction to issue the said notice. In the return, it is not disputed that the earlier show cause notice issued to the petitioner was subsequently withdrawn and it was held that the petitioner was exempt from payment of duty under Notification No. 97/70, dated 1-5-1970. It is also not in dispute that the petitioner was also exempt under the said notification and no duty was payable by it between 10-5-1976 and 8-11-1976. Thus, it is not in dispute that the amount of Rs. 8,547.45 paid by the petitioner as excise duty between the said period was liable to be refunded to it. However, it is contended in the return that as the petitioner did not apply for refund of the excise duty before the expiry of six months from the payment thereof the refund was erroneously granted to the petitioner and, therefore, the notice (Annexure 'A') was properly issued to the petitioner. It is further contended that as an alternative remedy of preferring an appeal against the order passed by the respondent No. 2 was available to the petitioner, this petition under Article 226 of the Constitution is not maintainable.

2. Having heard the learned counsel for the parties, we have come to the conclusion that the petition deserves to be allowed.

3. As stated above, it is not disputed that the petitioner was not liable to pay the excise duty for the goods cleared by him between 10-5-76 and 8-11-76 and that the said amount was liable to be refunded to it. It is not the case of the respondents that while claiming the refund of the amount of duty so paid by the petitioner, the petitioner mis-represented any facts. The petitioner applied for the amount of excise duty which was not liable to be paid by it after the decision of the earlier show cause notice in which it was held that the petitioner was exempt from duty under the Notification No. 97/70. All the facts were known to the respondent No. 2 when he passed the order for the refund of the amount of Rs. 8,547.45 which was paid by the petitioner as excise duty between 10-5-1976 and 8-11-1976. In the circumstances, it cannot be said that the refund was erroneously granted to the petitioner and, therefore, the respondent No. 2 had no jurisdiction to issue the notice (Annexure 'A') asking the petitioner to show cause why the petitioner be not required to repay the said amount which was refunded to it.

4. The contention that as an alternative remedy of appeal is available to the petitioner, this petition should not be entertained, connot be upheld because as stated above, the respondent No. 2 had no jurisdiction to issue the notice (Annexure 'A') calling upon the petitioner to re-deposit the amount refunded to it. The notice (Annexure 'A') and the subsequent proceedings before the respondent No. 2 and the order passed by him directing the petitioner to re-deposit the said amount are, therefore, liable to be quashed.

5. As a result of the discussion aforesaid, this petition is allowed. The notice No. 7861/10-1/80/C-12977 dated 3-3-1981 (Annexure 'A') issued by the respondent No. 2 and subsequent proceedings taken by him thereunder, as also the Order No. C. No. V(46)13-l/80/CI-16/63 dated 14-12-1981 (Annexure 'C') passed by the respondent No. 2 are quashed. In the circumstances, the parties shall bear their own costs of this petition. The outstanding amount of the security deposit be refunded to the petitioner.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //