- (1.) IN this writ petition, a prayer has been made that a sum of Rs. 1,52,159. 25 which has been deposited by the petitioner as excise duty for the period 25. 03. 1985 to 10. 10. 1985 should be directed to be refunded with interest, since the petitioner is dealing in exempted commodity, which is not liable to excise duty. It has been submitted that in accordance with the decision of Delhi High Court in Barman INdia Pvt. Ltd. vs. Union of INdia, dated 11. 7. 1987 and notification No. 55/75 dated 1. 03. 1975, no duty is leviable and a circular in this regard has also been issued bearing No. F. 17/37/87 dated 25. 02. 1986.
(2.) THE claim of the petitioner has been rejected as time barred being filed after expiry of six months. THE submission of learned counsel for the petitioner is that the excise duty is not leviable and the petitioner has not collected the duty from its customers and the claim could have been filed within a period of 3 years and, therefore, the respondents were not justified in refusing to refund the amount, which was deposited by the petitioner from its pocket. The submission of the learned counsel for the respondent is that it is not known as to whether the petitioner has deposited the amount from its pocket or the same was collected from the customers. It has been submitted that in view of the Central Excise and Customs Laws Amendment Act, 1991, Section 11-B has been amended and the petitioner is not entitled for the refund. I have considered over the matter. Admittedly the commodity is not liable to excise duty and, therefore, the petitioner is entitled for refund of excise duty. If the amount of excise duty has been collected by the petitioner from the customers, then the provisions of Section 11-B would be applicable and the proceedings will be taken in accordance there-with and if the amount has not been collected from the customers, then the petitioner is entitled for the refund The matter is, therefore, sent to the Assistant Collector for redetermination of the claim of refund. If it is found that the petitioner has not collected the excise duty from the customers, then the amount may be refunded to the petitioner and if it is found that the amount has been collected from the customers then the proceedings in accordance with the amendment mentioned above, may be taken. In case, the petitioner is found entitled for refund, interest at the rate of 12% may be given to the petitioner from the date of application to the date of actual payment. The writ petition is allowed in terms of the above directions. No order as to costs. .;