SCA/26937/2006 1/29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 26937 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ Sd/- HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Sd/- ==================================== 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? YES 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5. Whether it is to be circulated to the civil judge ? NO ==================================== INDIAN OIL CORPORATION LTD. - Petitioner Versus UNION OF INDIA THR' SECRETARY & 4 - Respondents ==================================== Appearance : MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR HASIT DILIP DAVE for Petitioner. MR HARIN P RAVAL for Respondents. ==================================== SCA/26937/2006 2/29 JUDGMENT CORAM : HONOURABLE MR.JUSTICE K.A.PUJ and HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 26/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. The petitioner – Indian Oil Corporation Limited has filed this petition under Article 226 of the Constitution of India praying for an order or direction holding and declaring that the action of the respondents of denying the refund of duty paid by the petitioner under the order in original dated 30.11.1995 is unreasonable, unconstitutional, inequitable, illegal and void. The petitioner has also prayed for the order or direction quashing and setting aside the order dated 07.11.2005 passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT). The petitioner has further prayed for the direction directing the respondents to refund the amount of Rs.1,11,93,757/- along with interest to the petitioner forthwith. 2. This Court has issued notice for final disposal on 11.03.2008. Pursuant to the notice, Mr. Harin P. SCA/26937/2006 3/29 JUDGMENT Raval, learned Assistant Solicitor General appeared for the respondents and filed affidavit-in-reply of Binod Kumar Gupta, Deputy Commissioner, Central Excise & Customs, Division-IV, Vadodara-I, on behalf of respondent Nos.3 to 5. 3. The case of the petitioner is that the petitioner was following the procedure under Rules 156A and 156B of the Central Excise Rules, 1944 for removal of its petroleum products from its refinery / warehouse to other warehouses. As per Rule 156A, consignees had to dispatch duly endorsed rewarehousing certificates / triplicate application to the petitioner / consignor who was then required to present the same within 90 days to the authority. Rule 156B provided that on failure to the present the same, the consignor had to pay duty on such rewarehoused goods and was entitled to refund of such duty on presentation of the certificate / triplicate application. 4. It is also the case of the petitioner that on 01.03.1984, Notification No. 75/84-CE was introduced exempting, SCA/26937/2006 4/29 JUDGMENT inter alia, condition that it was proved that the goods were cleared for the intended use and that where such use was elsewhere than in the factory of production, the procedure set out in Chapter X of the Rules was followed. The petitioner's consignees were entitled to procure petroleum products at concessional rate of duty under the said Notification against CT-2 certificates issued by officers in charge of the consignee's factory. As per Chapter X, the consignee had to account for quantities and actual use of goods so procured and in case of failure, it had to pay the differential duty under Rule 196. 5. The petitioner filed applications during the months of June to August 1993 for removal of RCO from its factory / warehouse to the warehouses of various consignees. Since the petitioner failed to produce triplicate AR-3A Forms within 90 days, notices were issued proposing recovery of duty. The petitioner filed its reply and produced CT-2 certificates. The respondent No.3 i.e. the Commissioner of Central Excise, Vadodara passed an order in original directing SCA/26937/2006 5/29 JUDGMENT recovery of duty of Rs.1,13,52,313/- holding that although the product was eligible for concessional duty in view of the CT-2 certificates, the petitioner had not established procurement by proper consignees. In effect, the said order imposed a liability upon the petitioner to pay duty under Rule 156B which was duly paid by the petitioner. 6. Subsequently, on receiving rewarehousing certificates, the petitioner filed a refund application on 06.11.1996 under Rule 156-B along with necessary documents. Out of abundant caution, the petitioner also filed an appeal against the order dated 30.11.1995 before the CEGAT and CEGAT vide its order dated 05.06.1997 dismissed the said appeal for want of clearance from the Government of India, Committee of disputes in pursuing the appeal, following the decision of the Hon'ble Supreme Court in the case of Oil & Natural Gas Commission V/s. Collector of Central Excise, 1992 (61) ELT 3 (SC). 7. Pursuant to the refund application filed by the SCA/26937/2006 6/29 JUDGMENT petitioner, the respondent No.5 i.e. Assistant Commissioner of Central Excise & Customs, issued a show-cause notice on 13.01.1997 proposing rejection of the refund claim on the ground that some AR-3A forms were not as required and that the petitioner had not proved that the duty had not been recovered from buyers. The petitioner submitted its reply stating, inter alia, that the documents indicated procurement by the consignees and produced invoices showing that duty had not been recovered from buyers. A dispute was raised for the first time vide letter dated 04.03.1997 that the demand was not under Rule 156B and that refund could be granted only after the order dated 30.11.1995 was set aside in appeal. In response to this, the petitioner submitted that as per the order dated 30.11.1995, the cause of payment of duty had been non-production of rewarehousing certificates within 90 days and, therefore, on getting those certificates, the petitioner was entitled to a refund under Rule 156B. 8. Being aggrieved by the said order of the respondent SCA/26937/2006 7/29 JUDGMENT No.5, the petitioner filed an appeal before the Commissioner (Appeals) of Central Excise who vide his order dated 30.10.1998 remanded the matter by observing that as per Rule 156B, when duty was paid and proof of rewarehousing was produced, the consignor was entitled to refund and that factual details in this regard were to be verified by the adjudicating authority. Pursuant to the order of Commissioner (Appeals), the respondent No.4 i.e. Deputy Commissioner of Central Excise & Customs, issued another show-cause notice on 16.05.2000 once again proposing rejection of the claim on the ground that Rule 156B was not applicable. The petitioner replied that the Commissioner (Appeals) had remanded the matter for verification of relevant documents concerning provisions of Rule 156B and hence, fresh show-cause notice could not be issued. The matter was once again adjudicated and the respondent No.4 vide his order dated 10.07.2000 rejected the claim by holding that Rule 156B was not applicable since the petitioner had paid duty pursuant to the order dated 30.11.1995 and that the duty was SCA/26937/2006 8/29 JUDGMENT confirmed under Rule 9 (2) read with Section 11A on the basis that the petitioner had cleared goods at a concessional rate not for intended use. 9. Being aggrieved by the said order of the Deputy Commissioner, the petitioner filed an appeal before the Commissioner (Appeals) who dismissed the petitioner's appeal vide his order dated 15.02.2001. Being further aggrieved by the order of the Commissioner (Appeals), the petitioner preferred appeal before the CESTAT and CESTAT also rejected the petitioner's appeal holding that the duty was paid consequent to the order dated 30.11.1995 and refund could be granted only after the said order was set aside. 10.Mr. Mihir Joshi, learned Senior Counsel appearing with Mr. Hasit D. Dave for the petitioner has submitted that the impugned order dated 07.11.2005 passed by CESTAT overlooks the fact that the order in original dated 30.11.1995 was, in sum and substance, an order directing recovery of duty under Rule 156B since the petitioner had not been able to produce the SCA/26937/2006 9/29 JUDGMENT rewarehousing certificates within the prescribed time limit and the Tribunal has failed to appreciate the fact that the show-cause notices were issued for non- production of rewarehousing certificates under Rule 156B and while confirming the show-cause notices, the Commissioner had merely mentioned another provision in the order which by itself could not be said to be a recovery / order under that provision. He has, therefore, submitted that the impugned order of the Tribunal is completely unreasonable, unconstitutional, irrational and illegal. He has further submitted that the Tribunal has failed to appreciate the fact that the petitioner could not have challenged the order dated 30.11.1995 since the demand was under Rule 156B for failure to produce rewarehousing certificates within time and was entitled, under the provisions of Rule 156B, to apply for refund on presentation of the triplicate application. The impugned order is passed without any application of mind and is arbitrary, unjust and illegal. The action of the respondents of treating the recovery as one under Rule 9 (2) only on account of a reference to an incorrect provision in the order in SCA/26937/2006 10/29 JUDGMENT original is clearly in order to deny the benefit of Rule 156B available to the petitioner and disallow the petitioner's legitimate claim to refund of duty and hence, the said action is unreasonable, unconstitutional and high handed. By order dated 30.10.1998, the respondent No.2 had observed that as per Rule 156B, when duty had been paid and proof of rewarehousing was produced by the consignor, the consignor would be entitled to refund of the duty so paid on making an application to the proper officer and had remanded the case only for verification of the factual details in this regard. In view of this, the entire proceedings in remand starting from the order dated 10.07.2000 passed by the respondent No.4 and culminating in the impugned order of the Tribunal, holding that there was no question of granting refund since the order dated 30.11.1995 had not been set aside, are without jurisdiction and beyond the scope of the remand. He has, therefore, submitted that the impugned order is required to be quashed and set aside and the respondent authorities are required to be directed to grant the refund to the petitioner with SCA/26937/2006 11/29 JUDGMENT interest forthwith. 11.Mr. Harin Raval, learned Assistant Solicitor General appearing for the respondents, on the other hand, has raised preliminary objection as regards the maintainability of the petition. He has submitted that the petitioner is invoking jurisdiction of this Court under Article 226 of the Constitution of India, praying for issuance of a writ of mandamus or any other writ, order or direction holding and declaring that the action of the respondents of denying the refund of duty paid by the petitioner under the order in original dated 30.11.1995 is unreasonable, unconstitutional, inequitable, illegal and void. This order was appelable order and in fact, against the said order, appeal was filed which was also dismissed by CEGAT. The order passed by CEGAT dated 05.06.1997 has become final and the said order cannot be challenged after expiry of the period of more than 9 years. He has further submitted that the adjudicating authority in his order dated 30.11.1995 recorded the following findings :- SCA/26937/2006 12/29 JUDGMENT i. Notification No. 75/84-CE dated 01.03.1984 had provided the concessional rate, subject to the condition that where use to petroleum product specified in the said notification is elsewhere than the factory of the production, the procedure set out in Chapter X of Central Excise Rules, 1944 is required to be followed. ii. To be eligible to claim concessional rate of duty, the petitioner had produced CT.2 certificate in respect of the consignee, showing that consignee held entitlement for procuring the product at concessional rate of duty for intended use. iii. The adjudicating authority referred to Chapter X of Central Excise Rules, 1944, wherein it is stipulated under Rule 192 that the person intending to obtain remission of duty on such goods, shall make application for licence / registration certificate. Rule 193 also provided that all the goods obtained under Rule 192 shall be transported immediately from the place of procurement to the applicant premises. It was, therefore, obvious that the goods were to be obtained and procured by the consignee at the factory premises of the manufacturer and goods so obtained and procured shall be transported immediately by the consignee from the places of procurement to the applicant premises, that is, consignees premises. iv.It was found that acknowledgement in respect of the procurement had to be obtained by the consignor and SCA/26937/2006 13/29 JUDGMENT the consignor had to establish that the consignment was procured by the proper consignee who had license in the form L.4/Registration Certificate. v. It was also found that the consignor had to establish the procurement of the consignments to be cleared by the consignees at their factory premises and rest of the procedure as provided under Chapter X had to be followed by the consignee. vi.On facts, it was found that this procedure was not followed and proof was not produced by the consignor before the proper officer to establish the procurement. It was found that the manufacturer / assessee, i.e. the petitioner had not stated anything about the facts of establishing procurement of the consignment in the hands of proper consignee and, therefore, the allegations levelled in the show-cause notices were found to be correct. vii.It was found that the consignments of R.C.O. which were assessed at concessional rate of duty subject to condition for intended use to the said product, were diverted to somewhere best known to the manufacturer. viii.Therefore, it was found that the petitioner had misused concession granted under the Notification No. 75/84-CE, dated 01.03.1984 and had cleared the goods in the guise of concessional rate of duty not for SCA/26937/2006 14/29 JUDGMENT intended use. It was, therefore, found that the duty was correctly demanded under Rule 9 (2) read with Section 11A of the Central Excises Salt Act, 1944. 12.Mr. Raval has, therefore, submitted that in view of the above findings, the Commissioner of Central Excise and Customs vide his order dated 30.11.1995 confirmed the duty of Rs.1,13,52,313/- demanded under the show-cause notices under Rule 9 (2) of the Central Excise Rules, 1944 read with Section 11A (1) of Central Excises Salt Act, 1944 which was ordered to be recovered within 90 days from the date of receipt of the said order. 13.Pursuant to this order of the Commissioner of Central Excise & Customs, the petitioner made payment of Rs.1,13,52,313/- with interest of Rs.9,30,824/- on 02.08.1996. 14.Mr. Raval has further submitted that the above order of the Commissioner of Central Excise & Customs dated 30.11.1995 was challenged before CEGAT. However, the said appeal of the petitioner was SCA/26937/2006 15/29 JUDGMENT dismissed on 05.06.1997 for want of approval from the Committee on disputes. The CEGAT while dismissing the appeal, however, reserved the liberty to the petitioner to revive the appeal, if and when such clearance is obtained. The petitioner had never availed of this liberty. After furnishing of the rewarehousing certificate, the petitioner had filed refund application and after issuance of show-cause notice, the said claim was adjudicated upon by the Assistant Commissioner of Central Excise vide his order dated 16.04.1997, who for the reasons recorded in the said order clearly held that application for refund of the petitioner was liable to be and was accordingly rejected. However, since the refund could not be sanctioned by the said authority, the said order did not preclude the petitioner from claiming refund in case (i) they had filed an appeal against the Order in Original of the Commissioner and (ii) if the appellate authority decides in their favour. Subject to the said observation, the refund was rejected. When this order was challenged by the petitioner before the Commissioner (Appeals), the matter was remanded SCA/26937/2006 16/29 JUDGMENT and in view of the said order of remand dated 30.10.1998, the Deputy Commissioner after issuance of notice again passed an order by the Commissioner (Appeals) on 15.02.2001 holding that there was no infirmity in the order passed by the adjudicating authority. 15.Mr. Raval has further submitted that even the order of the Commissioner (Appeals) was challenged before the CESTAT which was also dismissed on 07.11.2005. The CESTAT in its order held that duty was not paid under Rule 156B(1) of the Central Excise Rules and, therefore, refund cannot be claimed under Rule 156B (2). It was further held that duty was paid consequent to the order in original dated 30.11.1995 and the said order was not modified by any authority and, therefore, refund claim was not allowable. When the said order is challenged in the present petition, the relief claimed therein is obviously barred on the ground of efficacious alternative statutory remedy by way of tax appeal under Section 35G of Central Excise Act, 1944 available to the petitioner. When efficacious SCA/26937/2006 17/29 JUDGMENT alternative remedy is available, writ petition under Articles 226 & 227 of the Constitution of India would not be maintainable. He has further submitted that the reliefs claimed in the petition are not grantable to the petitioner, since the order dated 30.11.1995 passed by the adjudicating authority was challenged before the CEGAT in an appeal and the said appeal was dismissed and no further challenge was made. He has, therefore, submitted that the petitioner cannot be permitted to challenge the said order passed in the year 1995. Challenge to the present order arising out of the refund proceedings culminated in the order dated 07.11.2005 cannot be gone into and / or questioned in a writ petition either under Article 226 or Article 227 of the Constitution of India. 16.Mr. Raval has further submitted that the petitioner is guilty of not pointing out true and correct facts. Though the petitioner preferred appeal before the Tribunal challenging the order dated 30.11.1995, the same could not be proceeded with for want of necessary action, whereas the record produced by the SCA/26937/2006 18/29 JUDGMENT petitioner, more particularly, show-cause notice dated 16.05.2000 shows clearly that vide final order dated 05.06.1997, appeal was dismissed and thus the demand made vide order in original stood confirmed. 17.Over and above this legal submissions, Mr. Raval has further submitted that even on merits, the petitioner is not entitled to refund as the petitioner has not fulfilled condition of Notification No.75/84-CE dated 01.03.1984. The department had issued show-cause notices for recovery of the duty under Rule 9 (2) read with Section 11-A of the Central Excise Act and accordingly, the petitioner had paid the duty as per the order in original passed by the adjudicating authority. It is very clear from the order dated 30.11.1995 that the petitioner misused the concession granted under Notification dated 01.03.1984 and cleared the goods in the guise of goods enjoying benefit of concessional rate or duty not for any intended use. Since the duty was demanded under Rule 9 (2) read with Section 11A of the Central Excise & Salt Act, 1944, the question of submission of rewarehousing certificate does not arise. SCA/26937/2006 19/29 JUDGMENT Since the duty was paid in accordance with the duty confirmed under Rule 9 (2) of the Rules read with Section 11A of the Act, in pursuance of order dated 30.11.1995, the petitioner is not entitled to any refund. He has further submitted that before passing an order, the respondent No.4 examined the objection of remand case under Rule 156B (1) of erstwhile Central Excise Rules and found that the duty was not paid under the said Rule and, therefore, held that refund could not be granted to the petitioner. He has further submitted that since the petitioner paid duty in accordance with the order dated 30.11.1995, which is still operative and since duty was not paid within 10 days of remand as required, it could not be accepted that duty was paid under Rule 156B(1) of the Rules. He has further submitted that since the observations / directions of remand case were taken into consideration and examined to the extent of benefit of Rule 156B or otherwise and since it was found that though the order in original dated 30.11.1995 passed by the Commissioner was in terms of Rule 9 (2) read with Section 11-A, it has not been set aside by the Tribunal SCA/26937/2006 20/29 JUDGMENT and hence, the entire proceedings in remand starting from the order dated 10.07.2000 passed by the respondent No.4 and culminating in the impugned order of the Tribunal holding that there was no question of granting refund since the order dated 30.11.1995 had not been set aside, are not without jurisdiction nor it was beyond the scope of remand. He has, therefore, submitted that the petition filed by the petitioner deserves to be dismissed with cost. 18.Having heard Mr. Mihir Joshi, learned Senior Counsel appearing with Mr. Hasit Dave for the petitioner and Mr. Harin P. Raval, learned Assistant Solicitor General appearing for the Excise Department and having considered the orders passed by the authorities below including that of the Tribunal in two or three rounds of litigations, we are of the view that the respondent authorities are not justified in denying the legitimate claim of refund of the duty amount paid by the petitioner. 19.Dealing with the preliminary objection raised by Mr. SCA/26937/2006 21/29 JUDGMENT Raval against the maintainability of the present petition, in view of the availability of an alternative efficacious remedy of filing an appeal against the order of CESTAT before this Court under Section 35G of the Act, we are of the view that the position is well settled in law. It is true that normally, High Court should not exercise its extraordinary writ jurisdiction under Articles 226 and/or 227 of the Constitution of India, when an alternative efficacious remedy is available to the petitioner. But, there is no absolute ban on exercise of such jurisdiction. When the order under challenge is without jurisdiction, in violation of the principles of natural justice or in contravention of any of the fundamental rights enshrined in Part III of the Constitution of India, the High Court often comes out from this self-imposed judicial constraint and takes up the matter to render substantial justice, without driving out the petitioner from pillar to post. In the present case, the Commissioner (Appeals) in his order dated 30.10.1998, after examining the provisions of Rules 156A and 156B of the Excise Rules, found the order in original passed by the Assistant Commissioner SCA/26937/2006 22/29 JUDGMENT of Central Excise, rejecting the claim of refund made by the petitioner, as unsustainable and while setting aside the said order and remanding the case back for denovo adjudication directed to keep in mind that only factual details are required to be verified by the jurisdictional Assistant Commissioner. 20.Despite the order of the Commissioner (Appeals), the Deputy Commissioner of Central Excise, issued show- cause notice repeating the same reasons for rejection of refund claim and passed an order in original on 10.07.2000 holding that the petitioner had made the payment of duty accepting the order in original passed by the Commissioner, Vadodara and appeal filed there against was also dismissed by CEGAT for want of necessary approval from Committee on Disputes. He further held that subsequent presentation of the warehousing certificates by the petitioner was nothing but presentation of an evidence against the order of the Commissioner confirming the demand under Rule 9 (2) read with Section 11A of the Act and the same could not be considered by him when the impugned SCA/26937/2006 23/29 JUDGMENT order in original confirming the demand under Rule 9 (2) was still in force. He further held that the duty paid by the petitioner was not within 10 days of written demand from the proper officer, or not even within 10 days of confirmation of demands by the adjudicating authority, so the refund was not a refund of duty paid under Rule 156B (1) where only such duty [paid under Rule 156B (1)] was refundable under