IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE B.P.RAY FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 WP(C).No. 12717 of 2005(L) -------------------------- PETITIONER: --------------- ALWAYE FERTILIZER INDUSTRIES (P) LTD, HAVING REG. OFFICE AT KEEZHMADU,ALUVA TALUK (NOW IN POSSESSION OF THE KERALA FINANCIAL CORPORATION) REP. BY ITS MANAGING DIRECTOR MR. K.A ABDUL KHADER, KAROTHUKUZHY HOUSE, HP 25, KKP NAGAR, U.C COLLEGE(P.O), VELIYATHUNADU, ERNAKULAM DISTRICT. BY ADV. SRI.K.N.CHANDRABABU RESPONDENTS: ------------------ 1. UNION OF INDIA, REP. BY SECRETARY TO GOVT., MINISTRY OF FINANCE, NEW DELHI. 2. CENTRAL BOARD OF EXCISE AND CUSTOMS, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI, REP. BY ITS CHAIRMAN 110 003. 3. THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, ERNAKULAM, IST DIVISION, CENTRAL EXCISE BHAVAN, KATHRIKADAVU, KALOOR P.O, KOCHI 682 017. ADV. SRI.JOHN VARGHESE, SC, CENTRAL EXCISE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.P. RAY, J. - - - - - - - - - - - - - - - - - W.P.(C) No. 12717 of 2005 - - - - - - - - - - - - - - - - Dated this the 16th day of December, 2011. JUDGMENT The petitioner has approached this Court with the following prayers: 1. Issue an appropriate writ, direction or order to declare that Ext.P17 judgment of this Hon'ble court is squarely applicable in relation to Ext.P4 claim. 2. Issue a writ of certiorari or such other writ, direction or order quashing Ext.P19 and direct the 3rd respondent to reconsider and pass appropriate orders afresh in Ext.P4 claim made by the petitioner by relying on Ext.P17 judgment also. 3. Consequently issue an appropriate writ, direction or order in the nature of mandamus directing the 3rd respondent to dispose of Ext.P4 refund application as per the dictum laid down in Ext.P17 judgment. 2. Petitioner -company is a small scale industrial unit, having its registered office at Aluva, engaged in the manufacture of Magnesium Sulphate. The petitioner claims refund of excise duty paid on protest in respect of Magnesium Sulphate. Being aggrieved by the inaction on the part of the 3rd respondent to dispose of Ext.P4 refund application, this writ petition has been filed. 3. The learned counsel for the petitioner submits that the W.P.(C) No. 12717/2005 -:2:- issue involved in this case is squarely covered by Ext.P17 judgment. Following the aforesaid judgment, I quash Ext.P9 and remit the matter to the 3rd respondent for reconsideration, in accordance with law. The petitioner shall make a fresh claim application before the 3rd respondent and shall produce documents to the effect that the excise duty has not been passed over to any other person. If such an application is filed, the same shall be adjudicated within three months from the date of appearance of the petitioner and after giving an opportunity of hearing to the petitioner. The petitioner shall appear before the 3rd respondent on 09.01.2012 along with a copy of this judgment and necessary enclosures. This writ petition is disposed of as above. sd/- B.P. RAY, JUDGE. rv The words “Ext.P9” occurring in the 2nd line at page 2 of the judgment dated 16.12.2011 in W.P.(C) No. 12717/2005 L are corrected and substituted as “Ext.P19”, as per order dated 18.01.2012 in I.A. No. 433/12 in W.P.(C) 12717/05L. sd/- Registrar (Judicial) W.P.(C) No. 12717/2005 -:3:- Petitioner -company which is a small scale industrial unit engaged in the manufacture of Magnesium Sulphate at Keezhmadu, Aluva. According to the petitioner, magnesium sulphate is a mico nutrient for plants and it is treated as fertilizer by all farmers. The fertilizers were included in the W.P.(C) No. 12717/2005 -:4:- erstwhile Central Excise Tariff as item 14 HH. Later, with the commencement of the Central Excise Tariff Act, 1986 the fertilizers were included under Chapter 31 of the Central Excise Tariff Act in the schedule to the said Act. Item 31.05 of the said Chapter included “other fertilizers”. The petitioner company was purchasing sulphuric acid for the production of magnesium sulphate from Cominco Binani Zinc Limited. The petitioner - Company was having an L6 licence from 09.11.1992 as per Central Excise Act. W.P.(C) No. 12717/2005 -:5:- B.P. RAY, J. ----------------------------------------------------------- O.P.No. 13887 of 2002 ------------------------------------------------------------- Dated this the 16th day of November, 2011. JUDGMENT