M/S Bombay Dyeing & Mfg Co. Ltd. vs Commissioner Of Central Excise

(d) Issue a writ of prohibition or any other appropriate writ, order or direction in the nature therefore, restraining the respondent from collecting duty of excise on yarn obtained by the petitioner in its composite mill which is further processed in the manufacture of fabrics.

Accordingly, we dispose of the writ petition in terms of the aforesaid orders of the Supreme Court, which should be read as part of our order. No order as to costs.”

5. Consequent to the disposal of the writ petitions, the Assistant Collector of Central Excise vide letter dated 26.3.1993 addressed to the appellant, informed the appellant that Section 7 11A of the Central Excise Act, 1944 (for short, ‘the Act’) was not applicable to the facts of the present case. For, the amount was secured by the bank guarantee furnished by the assessee in terms of the interim order passed by the High Court of Delhi. Yet an opportunity was offered to the appellant to send its response. The said letter of the Assistant Collector reads as follows: ­ “OFFICE OF THE ASSTT. COLLECTOR OF CENTRAL EXCISE: DIVISION F­I 2ND FLOOR, MADHU INDUS ESTATE:

(e) Issue appropriate writ, order or direction directing the respondent to refund the amount of duty illegally recovered from the petitioner in respect of yarn obtained in the petitioner’s composite mills and further processed in the manufacture of fabrics for the period commencing from 15.7.1977 in respect of cellulosic spun yarn and non­ cellulosic spun yarn and from 17.3.1972 and in respect of cotton yarn and from 15.7.77 upto the date of disposal of the present writ petition and in particular the amounts referred to in statement (annexure E) together with interest at the rate of 12% p.a. and in the alternative to direct Respondents No.3 and 4 to grant the refund as per refund claims dated 13.5.1981 (colly.);

2. During the pendency of the aforementioned writ petitions, the appellant filed Civil Miscellaneous Petition Nos. 1698/1981 and 1699/1981 in the concerned writ petitions, praying for interim reliefs. For the sake of convenience, the reliefs claimed in Civil Miscellaneous Petition No. 1699/1981 filed in Writ Petition No. 1235/1981 are reproduced below: ­ “(a) grant order of stay permitting the petitioners forthwith to further process and use cellulose and non­cellulosic spun yarn, man­made filament yarn and cotton yarn in its composite mill in the manufacture of man­made fabric, cotton fabric and woollen fabric at nil rate of duty and to clear cotton fabrics forthwith upon payment of duty in respect of cotton fabric only (without payment of duty on cotton yarn) upon the petitioners undertaking to furnish the requisite bond in Form B­13 Rule 9B supported by a bank guarantee for an amount equivalent to 25% of the differential duty in respect of such yarn within three weeks hereof and to restrain the respondent 3 to 4 from taking any action or proceedings pursuit to the directives of the Board, respondent No.2 (Annexures A and B to the writ petition) and notices dated 23.4.1981 (Annexure C to the writ petition), and all similar notices referred to in the Statement (Annexure D), dated 7.1.1981 (Annexure G to the Writ Petition) and 9.3.1981 (Annexure H to the Writ Petition):

32. Taking overall view of the matter, we are of the considered opinion that the appellant cannot be allowed to approbate and reprobate ­ for inviting the High Court of Delhi to pass interim order stipulating that the appellant would execute bonds in Form 38 B­13 referable to Rule 9B of the Rules and continue to file monthly RT­12 returns from time to time, on which endorsements have been made indicating that it is a case of provisional assessment. The appellant cannot now be permitted to urge that it had not submitted to the process of provisional assessment as such for lack of a specific order of the concerned authority in that behalf. The order passed by the High Court of Delhi on 10/12.3.1993, will have to be understood in proper perspective and not to give undue advantage to or bestow favour on the appellant and thereby deprive the legitimate State exchequer.

33. Resultantly, this appeal deserves to be dismissed and the same is accordingly dismissed with no order as to costs. Pending interlocutory applications, if any, shall stand disposed of.

…………………………..J (A.M. Khanwilkar) …………………………..J (Dinesh Maheshwari) New Delhi;

December 9, 2019.