KIRLOSKAR PNEUMATIC COMPANY LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this Writ Petition under Article 226 of the Constitution of India, the petitioners are seeking the following relief: -

(2.) THESE factories are registered under Section 6 of the Central Excise Act and Rule 9 of the Rules. The registration numbers are also set out at para -6. The petitioners have pointed out that they have approached the authorities for the purposes of taking credit and erroneously and inadvertently they mentioned the registration number of the Hadapsar factory. The monthly returns were also filed and as is clear from para -10 to 12 of the petition. The petitioner points out that the goods have been cleared and the duty payable has been paid in full. However, they were required to approach the authorities for the purposes of making a correction and which is contained in the letter of the petitioners at Annexure -E. This letter had to be addressed because it was brought to the notice of the petitioners that though they claim to have paid the amounts in cash and taken as credit in personal ledger account and utilized for payment of central excise duty for the month of December 2010, the Challan papers appear to be in respect of Hadapsar unit/factory of the petitioner. This fact was brought to the notice of the petitioners by the official of the department namely Superintendent of Central Excise, Jejuri Range, who has jurisdiction over the Saswad factory. It is in these circumstances, that the petitioners addressed a letter dated 26th April, 2013 and what the petitioners have been informed is that there is no provision whereby any such corrections can be made. They would have to deposit the amount under the correct assessee code and apply for refund of the amount deposited under the wrong assessee code. Thus, on account of this inadvertent error the petitioners were called upon to apply for refund of the deposit made under the wrong code. The petitioners point out that there is no reason for refusing such a request because the matter does not require any adjudication or a decision. It is only a correction and which could have been permitted in the given facts and circumstances and without creating a precedent if that was the apprehension.

(3.) WHEN this matter was placed before us, we called upon Shri Bhate appearing for the respondents to take instructions and make a statement whether the respondents are willing to make the corrections and by not calling upon the petitioners to pay duty and seek a refund. However, Mr. Bhate states that the Commissioner is of the view that there is no such power vested in him. In the absence of any legal provision, such a request cannot be granted. To our mind, the refusal to correct the assessee's code and to insist on payment of Rs. 18,60,000/ - and thereafter seek a refund of the same, is ex facie erroneous and untenable. There is absolutely no justification for calling upon the petitioners to pay the sum and which they otherwise are entitled to take credit of. In these circumstances and in the facts peculiar to the petitioners, so also without creating any precedent for future cases, we allow this Writ Petition. Rule is made absolute in terms of prayer clause (a). The corrections be made within a period of four weeks from the date of receipt of copy of this order.