DINESH MEHTA,J. - (1.) The petitioner has preferred the present writ petition invoking this Court's jurisdiction under Articles 226 and 227 of the Constitution of India with the following prayers :- "(i). Allow the present writ petition filed by the petitioner company; (ii). Quash and set aside the impugned order dated 30.11.2017 (Annexure-12) passed by respondent no.3; (iii). Quash and set aside the impugned notice dated 25.03.2008 (Annexure-6) passed by respondent no.2; (iv). Quash and set aside the impugned notice dated 20.12.2017 (Annexure-13) issued by the respondent no.4; (v). Quash and set aside the impugned corrigendum dated 03.05.2017 (Annexure-10) passed by respondent no.2; (vi). Hold, that the impugned order dated 30.11.2017 (Annexure-12) is beyond limitation; (vii). Hold, that the petitionr has been rightly granted the refund of duty vide sanction/adjudication order dated 30.08.2007 (Annexure-5); (viii). Hold, that once the order under Section 11B has not been challenged, proceedings for recovery of such refund cannot be initiated under Section 11A(1) considering the same refund to be erroneous; (ix). Restrain the respondents and/or any agent, officer, any person representing the respondent department from taking any coercive action against the petitioner company until the final disposal of the present writ petition."
(2.) With a view to pronounce upon the prayers made by the petitioner and in a bid to adjudicate the controversy involved in the present writ petition, it is desirable to narrate the facts in a nut-shell, which we do, as infra :- 2.1 The petitioner Company is engaged in the process of cutting the marble blocks into marble slabs and tiles. On 14.11.1996, the Officers of the Central Excise Department conducted a survey on the business premises of the petitioner Company and found that it was not paying the Central Excise on the processing of marbels. The Adjudicating Authority initiated proceedings under Section 11A of the Central Excise Act, 1944 (hereinafter referred to as "the Act of 1944") for levy/recovery of Excise Duty, which culminated into an order dated 20.11.1997. By way of the said order, a demand of Central Excise to the tune of Rs.20,80,834/- was confirmed and penalty of Rs.20,50,000/- was imposed. 2.2 The petitioner preferred an appeal against the said order in original passed by the Commissioner, before the Custom, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the CESTAT or the Tribunal"). The Tribunal however disposed of the appeal by remading the matter back to the adjudicating authority. 2.3 In furtherance of the remand so made by the Tribunal, the adjudicating authority passed another order dated 18.04.2000 and re-confirmed duty and penalties. 2.4 The petitioner took up the matter before the CESTAT again by way of an appeal, which came to be decided by order dated 23.2.2001. This time though the demand of duty of Rs.20,80,834/- was affirmed, but the penalty imposed under Section 11AC of the Act of 1944 was however reduced from Rs.20,50,000/- to Rs.5,00,000/-. 2.5 It is not in dispute that the assessee deposited the demand duty of Rs.20,80,834/-; penalty of Rs.5,00,000/- and Rs.1,50,000/- against interest, through Challan TR6. 2.6 It is admitted case of the petitioner that it did not assail the order of the Tribunal dated 23.02.2001 by way of any appeal or otherwise. The petitioner having deposited the demand, sprang into action only in the year 2004 after the judgment of Hon'ble the Supreme Court in case of M/s Aman Marbles pronounced on September 18, 2003 and a writ petition came to be filed before this Court, 2.7 The petitioner in its writ petition being DB Civil Writ Petition No.2246/2004, contended that in light of the judgment of Hon'ble the Supreme Court in Aman Marble's case wherein it had been held that cutting of marble blocks into the marble slabs does not amount to manufacture, excise duty was not payable and thus, the amount deposited by it or recovered from it was unauthorized. 2.8 A Division Bench of this Court allowed the petitioner's writ petition, vide its judgment dated 24.08.2006 and quashed the demand of excise duty and consequential penalty. A direction to refund the amount already deposited/recovered from the assessee, subject to provisions of Section 11B of the Act of 1944 was also issued. 2.9 In furtherance of above referred judgment dated 24.08.2006 passed by Division Bench of this Court, the petitioner moved an application on 03.01.2007 seeking refund of excise duty and penalty paid by it. 2.10 The petitioner's said application for refund was processed and allowed by the Assistant Commissioner, Central Excise-respondent No.3. During the course of the proceedings, the factum of pendency of department's SLP No.2372/2007, pending before Hon'ble the Supreme Court was noticed and it was proposed to withhold the refund. Whereat the assessee contended that merely because an SLP had been filed before Hon'ble the Supreme Court against the order of the High Court, it cannot be said that the order of the High Court was no longer in force. It was contended by the petitioner that the order of the High Court is operative and the same would remain in force till it was reversed or set aside. 2.11 After examining the refund application, the respondent No.3 found that the refund claim was not hit by principle of unjust enrichment as the burden of the disputed amount had been borne by the petitioner. It was also recorded that the entire amount had been deposited by the assessee after removal/clearance of the goods. It was also noticed that the proceedings were initiated in furtherance of the visit of Anti Evasion Team on 14.11.1996, whereas the subject goods had already been cleared. 2.12 Having recorded the categorical finding of not passing on the incidence of the tax to the customers, the adjudicating authority allowed the refund claim of the petitioner, vide its order dated 30.11.2007 and issued a cheque dated 30.08.2007, amounting to Rs.26,80,834/-. 2.13 Having passed the above referred order dated 30.08.2007 and refunding the amount to the petitioner on 25.03.2008, the Additional Commissioner of the Central Excise issued a show cause notice to the petitioner Company, requiring it to show cause as to why amount of Rs.26,80,834/- erroneously refunded to it, be not recovered under Section 11A of the Act of 1944 along with applicable interest under Section 11AB of the Act of 1944. 2.14 It is pertinent that in the notice dated 25.03.2008, the Additional Commissioner had categorically recorded the factum of filing of SLP No.2373/2007 against, passed in petitioner's writ petition No.2246/2004. It was interealia observed that in the event of Department succeeding in Supreme Court, the refund granted to the petitioner would become erroneous. The relevant extract of para 3 of the said show cause notice dated 25.03.2008, is reproduced hereunder :- "3. And whereas the department has filed SLP No.2373/07 in the Hon'ble Supreme Court against the Order dated 24.08.2006 of the Hon'ble High Court passed in DB CWP No.2246/2004. Hence the Order has not attained finality. In the event of Department succeeding in Appeal, the Refund granted shall become erroneous. Therefore, this demand notice is being issued to protect the recovery of amount erroneously refunded so as to ensure that recovery is not barred by limitation as per the provision of Section 11A of the Central Excise Act, 1944." 2.15 The above referred notice dated 25.03.2008 under Section 11A of the Act of 1944 was issued to the petitioner well within the period of limitation (one year), prescribed under Section 11A of the Act of 1944. It may have some relevance that said notice dated 25.03.2008 was however not proceeded with any further by the respondents, perhaps in wake of pendency of SLP / appeal before Hon'ble the Supreme Court. 2.16 The SLP filed by the department being SLP No.2372/2007, which was later registered as appeal No.5857/2007 came to be allowed by Hon'ble the Surpeme Court, vide its order dated October 16, 2015. 2.17 Hon'ble the Supreme Court while allowing the appeal filed by the respondent Department accepted their contentions that no writ petition for refund of claim of excise duty, penalty and interest was maintainable, when the proceedings had attained finality at the Tribunal level and amount had been recovered. Hon'ble the Supreme Court while accepting the contention of the department quashed not only the impugned judgment of the High Court but also, the directions contained in relation to refund of amount of duty, penalty and interest. 2.18 The Additional Commissioner - respondent No.2 thereafter on 03.05.2017, issued a corrigendum to the show- cause notice dated 25.03.2008 (issued under Section 11A of the Act) and asked the petitioner to show cause within 30 days of the receipt of the notice, as to why sum of Rs.26,80,834/-, erroneously refunded to it, be not recovered along with the interest under Section 11A and 11AB of the Act of 1944. 2.19 The petitioner filed a reply dated 09.10.2017 to the said show cause notice and contended that the noticee was not aware of any SLP filed by the department against the order dated 26.08.2004 passed by the High Court and decision thereon. It was further stated that on search made by it, the petitioner found a copy of the judgment of Hon'ble the Supreme Court. 2.20 The petitioner's basic contention pursuant to the show- cause notice dated 25.03.2008 read with corrigendum had been that the Department was not entitled to recover any duty from the respondent, after the judgment in case of M/s Aman Marbles. 2.21 Short reply dated 9.10.2017, filed by the petitioner in response to the show-cause notice demonstrates the stand of the assessee, according to which no recovery could be made from it, as the Supreme Court had held that "from the date of judgment of this Court, the Excise Department is not entitled to recover any such excise duty from the respondents." In other words, the petitioner opposed the recovery of the amount already refunded to it, taking shelter of the aforesaid observation made by Hon'ble the Supreme Court. 2.22 The petitioner's aforesaid submissions did not find favour of the respondents and the Assistant Commissioner observing that the petitioner has mis-interpreted the judgment of Hon'ble the Supreme Court, passed an order dated 30.11.2017 and held the sum of Rs.26,80,834/- to be recoverable from the petitioner, with interest as the same had been erroneously refunded.
(3.) Feeling aggrieved of the order in original dated 30.11.2017, passed by Assistant Commissioner - respondent No.3, the petitioner has again approached this Court by way of the present writ petition.;