COLLECTOR OF CUSTOMS BOMBAY Vs. SANGLI BANK LIMITED

JUDGEMENT

(1.) In view of the decision of this court in the case of Collector of Customs, Bombay v. M/s. K. Mohan and Co. Exports - 1989 (43 E. L. T. 811 (S. C. ) = 1989 Supp. 2 SCC 337, the point of law is concluded in favour of the respondent. Therefore, this appeal must be dismissed. However, this is a case of refund. The question of refund will now be governed by the decision of this court in Mafatlal Industries v. Union of India.- 1997 (89 E. L. T. 247 (S. C. ) = 1996 9 SCALE 457 which is as follows:

(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 a writ petition or a suit or any appeal arising therefrom the anfacturer/purchaser shall be entitled to withdraw the writ petition, suit or an 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 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 petitioner 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 shall apply even in cases where the High court or Civil court is approached after exhausting the remedy of appeal to Collector (Appeals). He can file an appeal to CEGAT within sixty days from today, after withdrawing the writ petition or the suit, as the case may be.

(3.) Where, however, a writ petition or suit claiming refund was filed directly in the High court/civil court (i. e. , without filing a refund application) , the petitioner/plaintiff shall be entitled to withdraw such writ petition/suit or any appeal arising therefrom and prefer a refund claim under Section 11b within sixty days from today provided the writ petition or suit was filed within the period prescribed by the central Excise Act/customs Act for filing the refund application. It is clarified herewith that even in a case where such writ petition has been allowed and 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.