DR. SABHARWALS MANUFACTURING LABS. LTD. THROUGH ITS MANAGING DIRECTOR, DR. A.R. SABHARWAL Vs. UNION OF INDIA (UOI),

JUDGEMENT

(1.) BY means of the present writ petition, petitioner prays for quashing of the order dated 27.12.2001 passed by Commissioner (Appeals), dated 31.12.2001 and the order dated 06.01.1989 passed by Assistant Commissioner, Central Excise, Division -1, Kanpur and the consequential relief.

(2.) ON the writ petition, Court has directed to file the counter affidavit. The writ petition has not yet been admitted. Amendment application has been filed on 13.02.2004 for the amendment of the writ petition, by which order of The Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as "CEGAT') dated 24.05.2002 is sought to be challenged and prayer lias been made for quashing of the order dated 24.05.2002 passed by CEGAT in appeal No. E/882/2002 -A, Dr. Sabharwal Mfg. Labs Ltd. v. CCE, Kanpur.

(3.) BRIEF facts giving rise to the present writ petition are that the petitioner preferred a refund claim for Rs. 50,305.71p. on the ground that their selling price are inclusive in the excise duty and according to Sub -section (4)(d)(ii) of Section 4 of Central Excise and Salt Act, 1944 (hereinafter referred to as "Excise Act") assessable value does not include the amount of excise duty. However, excise duty was paid by them on the selling price inclusive of excise duty. Therefore, the excise duty paid on the element of excise duty was in excess of the excise duty payable during the period July, 1987 to March, 1988. The claim of the refund was rejected by the Assistant Commissioner vide order dated 06.01.1989 on the ground that the excise duty was paid on the invoice value in accordance to the facilities available under the SSI scheme and the refund claim was filed on 29.08.1988 for the period from July, 1987 to March, 1988. Thus, il was barred by limitation as provided under Section 11B of Central Excise and Salt Act, 1944. Against the said order, petitioner filed Writ Petition No. 533 of 1989. The aforesaid writ petition was admitted and when it finally came up for hearing on 26.02.2001 it was dismissed on the ground of alternative remedy. Petitioner filed appeal under Section 35 of the Excise Act. Appeal was dismissed by the Commissioner (Appeals) by the impugned order dated 06.01.1989, which is annexure -4 to the writ petition, Petitioner filed the present writ petition even though against the impugned order appeal lies before the Tribunal under Section 35B of the Excise Act. It also appears that the petitioner has also filed appeal No. E -882/2002 -A against the impugned order before CEGAT and the said appeal has been decided vide order dated 24.05.2002. The fact that the petitioner has filed the appeal before the CEGAT has not been brought on record. The decision of the Tribunal dated 24.05.2002 has also not been brought on record immediately. Amendment application has been filed on 13.02.2004 after twenty months, which came up before this Court on 17.02.2004. On that date, this Court ordered to put up the application with previous papers. No further order has been passed on the amendment application. Against the order of the Tribunal, reference lies under Section 35H of the Excise Act