Case Law Details
CA Bimal Jain
Duty paid on manufacturing activity in earlier settled proceedings cannot be claimed as refund merely on the ground of the Supreme Court taking different stand in another assessees case
Facts:
Saraswati Marble & Granite Industries P. Ltd. (“the Respondent”) received a SCN on the ground that the cutting of marble blocks into marble slabs and tiles amounted to manufacturing activity, and thus, liable to Excise duty. The matter travelled till Tribunal wherein the demand was confirmed and accordingly, the amount of duty along with interest and penalty was recovered from the Respondent. However, the matter was not taken further by the Respondent and the proceedings were over sometime in February, 2001.
Later on, such identical issue was taken up to Supreme Court in the case of Rajasthan State Electricity Board Vs. Associated Stone Industries & Anr. [JT 2000 (6) SC 522], where it was held that such activity does not amount to manufacture. After this judgment was delivered, though in another assessee’s case, the Respondent filed writ petitions seeking refund of the amount, which they had paid and the Hon’ble High Court allowed those writ petitions directing the Union of India to refund the amount of duty, interest and penalty.
Held:
The Hon’ble Supreme Court held that no such writ petition to claim refund of duty, interest and penalty was maintainable when the proceedings in respect of the Respondent had attained finality and the amount was recovered. Therefore, Order of refund of earlier recovered amount merely on the ground that this Court took different view thereafter in some other case would not be permissible.
The Hon’ble Supreme Court further held that once this Court has settled the position of law holding that the aforesaid process would not amount to manufacture, from the date of the judgment of this Court, the Excise Department is not entitled to recover any such Excise duty from the Respondent.
(Author can be reached at Email: bimaljain@hotmail.com)
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Author Bio
To pay duty under protest, one needs to move his case to appellate, he cannot wait for someone else to move their identical case.
if the respondent had paid the duties under protest i.e. by writing to the dept that the duties are being paid under protest and would be claimed based on subsequent development of case laws etc. on the issue then even if not appealed to higher authorities by him, the benefit of decision in case of other assessee would have been available to the respondent. Hope this view is correct, Pl comment.