HIMACHAL FUTURISTIC COMMUNICATION LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) Since common questions of law and facts are involved in these two cases, the same were taken up together for hearing and are being disposed of by a common judgment. However, the facts of CWP No. 1082/2004 are being discussed herein-below. Petitioner commenced manufacturing activity on 13.7.1987. The refund claim of the petitioner was rejected by the Adjudicating Authority i.e. Assistant Commissioner on 19.2.2002. Petitioner preferred an appeal before the Commissioner of Central Excise (Appeal) against the order dated 19.2.2002. He vide order in appeal No. 216/CA/CHD/203 dated 20.3.2003 set aside the order in original and ordered the refund to the petitioner. The Revenue preferred an appeal with the CESTAT. The same was rejected on 18.3.2003. Petitioner approached this Court for implementation of order dated 18.3.2004. The Revenue has filed Central Excise Appeal No. 3/2004. The same was admitted on the following question of law on 9.12.2004: Whether the provisions of Time Bar under section 11B of the Central Excise Act, 1944 would be applicable or not in such cases, where prices were finalized after 5 years and provisional assessment was not resorted to by the party.

(2.) The question of law framed in Central Excise Appeal No. 3/2004 is no more res integra in view of the law laid down by their Lordships of the Honble Supreme Court in MRF Limited versus Collector of Central Excise, Madrass, 1997 5 SCC 104. Their Lordships have held as under:

(3.) Accordingly in view of the authoritative pronouncement by their Lordships of the Honble Supreme Court, as noticed above, Central Excise Appeal No. 3/2004 is allowed. The question of law is answered in favour of the Revenue and against the respondent. In view of this, writ petition is liable to be dismissed and the same is dismissed. There shall, however, be no order as to costs.