BOMBAY CHEMICALS LIMITED Vs. H S SHARMA

JUDGEMENT

(1.) To state in brief the petitioners are the holder of Central Excise Registration for the manufacture of "Toys, Brand Mosquito Coils" (the Product in brief). According to them, the Product comes within the definition insecticides, classified under Tariff Item No. 68 and is eligible for exemption under Notification No. 55/75, dated 1-3-75 as amended by Notification No. 62/78 up to 31st October, 1982 and was exempted from 1-11-82 to 28-2-86 under Notification 234/82, dated 1-11-82. The product is classified under Chapter sub-heading No. 3808.10 of Schedule to the Central Excise Tariff Act, 1985 and is chargeable to 'NIL' rate of duty, up to 28-2-1994. The Assistant Collector Central Excise allowed the exemption but the Collector Central Excise (Appeals) disallowed the exemption. That order was challenged before the CEGAT by the petitioners and Special Bench of the CEGAT by an order dated 19th March 1990 [1990 (49) E.L.T. 431 (Tribunal)] held that the product is insecticide. The Department preferred an Appeal No. 4817/90 before Hon'ble Supreme Court challenging the order of the CEGAT. The Appeal was dismissed by the Supreme Court by an order dated 28-2-94 [1994 (70) E.L.T. A155 (S.C.)]. Therefore, it is no more in dispute that the product is insecticide and is exempted from Excise duty.

(2.) The petitioners submitted 15 refund claims different periods from 27th September 1979 to 28th February, 1994 for different amounts paid towards the excise duty from time to time as required by the department. Total claim is for Rs. 13,17,34,703.65. The Petitioners contended that personal hearing was given by the Respondent Nos. 3, C.P. Goel, the then Assistant Collector (Excise) to the Petitioners and they were also represented by their counsels. After hearing the Petitioners and the representative of the Department, the Assistant Collector (Excise) passed an order dated 22nd March, 1995, whereby he sanctioned refund claim of Rs. 67,79,284.95 for the duty paid during 27th September, 1979 to 31st December, 1983 to the Petitioners on the ground that he had not passed over the said liability to the cut tomers. He came to conclusion that the duty paid by the Petitioners from 1-1-84 to 28-2-94 was actually passed over to the customers, and therefore, though the amount of Rs. 10,43,41,863/- is liable to be refunded. It could not be paid to the Petitioner but was liable to be credited to the Consumer Welfare Fund established under Section 12C.

(3.) It is contended that the order of the Assistant Collector passed on 22nd March, 1995 had become final and if department was aggrieved by the same, it could challenge the same by way of an Appeal Revision. But no such procedure was adopted and the then Assistant Collector Respondent No. 2 passed the impugned order dated 12th October, 1995 without giving an opportunity of hearing to the Petitioners and reversed the earlier order of Assistant Collector, the Respondent No. 3. In this Writ Petition, the Petitioners seek declaration that the order dated 12th October, 1995 is Non-est, illegal and bad in law and direction to quash and set aside the same. The Petitioners also seek declaration that the order dated 22nd March, 1995 passed by the Respondent No. 3 is proper, legal and binding on the Central Excise Department. The Petitioners also seek direction to the Respondent No. 1 to forthwith make payment of refund claim as per the order dated. 22-3-95 with interest at such rate as this Court may deem fit and proper. In alternate, the Petitioners claim entire refund of Rs. 13,17,34,703.65 with interest.