SWASTIK SANITARYWARES LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners have challenged an order dated 233- 2004 passed by the respondent No.3 - Deputy Commissioner of Central Excise. The petition arises in following factual background. The petitioner No.1 is a company registered under the Companies Act. The petitioner No.2 is the office bearer of the company. The company is engaged in the business of manufacture of sanitary wares which are excisable goods. The petitioner company cleared its final product during the period between June, 2002 and September, 2002 on payment of excise duties totalling to Rs.91,129/-. The petitioners due to a pure clerical error, paid the same amount of duty on same clearances all over again by debiting the amount in the Personal Ledger account.

(2.) Realising that the sum of Rs.91,129/-was paid twice, the petitioners filed a refund claim before respondent No.3 on 1-11-2003. The respondent No.3, however, prima facie, finding that the refund claim was barred by limitation, issued a show-cause notice dated 9-1-2004 calling upon the petitioners to show cause why the same should not be rejected. It was contended that the refund claim was made beyond a period of one year which was the limitation period prescribed under the law.

(3.) The petitioners filed a detailed reply to the show- cause notice under communication dated 10-2-2004. In the reply to the show-cause notice, they elaborated that the amount was paid second time erroneously, the same was, therefore, not excise duty and the revenue should, therefore, in all fairness, refund the same. It was pointed out that the duty in question relates to five consignments exported by the petitioners to Nepal. The total duty of Rs.91,129/-was paid at the time of export. Second time at the month end of each month of clearance, such duty was paid by making necessary debit entries in the Personal Ledger Account of the petitioner No.1 company. It was contended that in view of the said facts, the provisions of section 11B of the Central Excise Act, 1944 ('the Act', for short) would not apply. It was contended that the Government has no jurisdiction to retain such amount erroneously deposited.