LexASSISTANT COLLECTOR OF CUSTOMS AND ORS. versus ANAM ELECTRICAL MANUFACTURING CO. ETC
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
ASSISTANT COLLECTOR OF CUSTOMS AND ORS.
B
v.
ANAM ELECTRICAL MANUFACTURING CO. ETC.
JANUARY 28, 1997
[S.C. AGRAWAL, B.P. JEEVAN REDDY AND
G.T. NANAVATI, JJ.]
Central Excises and Salt Act, I944/Customs Act, I962-Surcharge of
JOo/u-Levy of-Refund-To be made in accordance with the decision in
C Mafatlal Industries.
D
Mafatlal Industries v. Union of India, (1996) 9 SCALE 457, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1805-10
of 1979.
WITH
Civil Appeal Nos. 18126 of 1979.
From the Judgment and Order dated 29.11.73 of the Madras High
E Court in W.P. No. 25-42170,137, 3631-34 of 1971.
AND
Civil Appeal Nos. 1503-1519 of 1978.
From the Judgment and Order dated 13.3.74 of the Madras High
F Court in W.P. Nos. 117-32 of 1974.
K.N. Bhat, Additional Solicitor General, G. Prakash and C.V. Subba
Rao for the Appellants.
D. Ramakrishna Reddy, A.V.V. Nair and S.K. Mehta for the
G Respondents.
The following Order of the Court was delivered :
Heard the counsel for the parties.
H
So far as the question of levy of surcharge of ten percent which is in
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ASS1T. COLLECTOR OF CUSTOMS v. ANAM ELECTRICAL MFG.CO.
649
issue herein is concerned, we affirm the judgmen~ and order of the Madras A
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High Court. So far as the question of refund is concerned, it is obvious that
it shall be governed by the law declared in Mafatlal Industries v. Union of
India, (1996) 9 SCALE 457, read with clause (6) of the format order, a
...
copy of which is enclosed herewith which is as follows :
"Where a refund application or an appeal is preferred under and B
in accordance with the directions (1), (2), (3) and ( 4) above, the
same shall be entertained only if the application for refund/appel-
!ant files affidavit stating that he has not passed on the burden of
the duty, which is claimed by way of refund, to another person. In
case the applicant for refund is a company or a society, the affidavit
shall be sworn by the Managing Director or the Principal Officer c
of the Company or the Society, as the case may be. Such an affidavit
shall be treated as an averment/assertion which an applicant for
refund has to make in terms of the judgment in Mafatlal.
The appeals are disposed of in the above terms. No costs.
D
-t.
G.N.
Appeals disposed of.
Pursuant to the directions given in Mafatlal Industries v. Union of
India, (1996) 9 SCALE 457, the appeals/Special Leave Petitions coming up
for disposal shall be disposed of in terms of one or the other of the clauses E
below:
(1) Where a refund application was filed by the manufacturer/pm-
chaser beyond the period prescribed by the Central Excise Act/Customs
Act in that behalf, such petition must be held to be untenable in law. Even F
.>,
if in any appeal, suit or writ petition, direction has been given that the
..
refund application shall be considered without reference to the period of
limitation prescribed in the Central Excise Act/Customs Act - or that the
period of limitation shall be taken as three years - such a direction of the
Appellate Court/Civil Court/High Court shall be deemed to be unsus-
J~
tainable in law and such direction shall be set aside. The period prescribed G
by the Central Excise Act/Customs Act for filing a refund application in
the case of "illegal levy" cannot be extended by any authority or court.
_,
(2) Where, however, a refund application was filed within the period
prescribed by the Central Excise Act/Customs Act but has been dismissed
wholly or partly on any ground and the said order is questioned by way of H
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650
SUPREME COURT REPORTS
[1997] 1 S.C.R.
A a writ petition or a suit or any appeal arising therefrom the manufac-
turer/purchaser shall be entitled to withdraw the writ petition, suit or an
;J
appeal arising therefrom, as the case may be, and file an appeal before the
appropriate appellate authority within sixty days from today. It is clarified
herewith that even in a case where such writ petition has been allowed and
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B
an appeal filed by the revenue is pending, the writ petitioner shall be
entitled to withdraw the writ petition, in which event, the revenue appeal
shall be disposed of 'permitting the writ petitioner to withdraw the writ
petition to pursue the remedy proposed hereby. If such an appeal is filed,
it shall be entertained without raising an objection on the ground of
limitation and shall be dealt with in accordance with law. This direction
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