SURMA VALLEY SAW MILLS PVT LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India. The petitioner has sought for a direction on the respondents to refund an amount of Rs. 2,49,173.60 with interest @ 18 percent per annum.

(2.) The facts briefed are : The petitioner No. L, viz. M/s Surma Valley Saw Mills Pvt, Ltd. iis a manufacturer of plywood, block board etc. By notification No. 80/80 CE dated 19.6.80 issued by the Central Government under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, a small scale industry was allowed exemption from excise duty if its clearances did not exceed the limit of Rs. 20 lakhs. Thereafter the limit of Rs. 20 lakhs was enhanced to Rs. 25 lakhs by notification No. 83/83 dated 1.3.83. The Assistant Collector of Central Excise and Customs, Karimganj, did not allow the exemption to the petitioner. Being aggrieved the-petitioner filed appeals before the Collector( Appeals), Central Excise, Calcutta. The said appeals were also rejected. Then the petitioner preferred appeals before the Customs, Excise & Gold (Control) Appellate Tribunal (for short the CEGAT). The said appeals numbered as ED(SB) Appeal No. 2668 of 1984-D and No. 2667 of 1984-D were disposed of by the CEGAT with the observation that sawn timber were not to be included in the value of clearances for the purpose of limit of Rs. 20 lakhs and 25 lakhs laid down in the notification Nos. 80/80 CE Dated 19,6.80 and 83/83 CE dated 1.3.83 within which the exemption to small scale industries were to be allowed. Pursuant to the said orders passed by Ihe CEGAT, the petitioners claimed refund of excise duty for the period 1982^83, 1983-84 & 1984-85 amounting to Rs. 2,49,173.60 but the said refund was not allowed by the department. Petitioners have moved this Court under Article 226 of the Constitution of India for a direction on the respondents to refund the aforesaid amount with interest @ 18% per annum.

(3.) Mrs. Hazarika, learned counsel for the petitioner contended that since the CEGAT in the appellate orders has finally held that the value of sawn timber cleared by the petitioners for the aforesaid periods 1982-83,1983-84 & 1984-85 has to be excluded for the purpose of determining the limit of clearances laid down in the exemption notifications No. 80/80 CE dated 19.6.80 and 83/83 dated 1.3.83 upto which a manufacturer is entitled to the exemption under the said notifications, this is a fit case in which the respondents should be directed to pass orders on the claims for refund in accordance with Section 11(B) of the Central Excises & Salt Act. 1944, Mr K.N. Choudhury, learned Sr.CGSC, however, argued that the respondents have taken a plea in the Afidavit-in-Opposition that the petitioner has passed on the incidence of Excise Duly to its customers and under the provisions of Section-11(B) of the Central Excises & Salt Act, 1944, the excess amount of duty paid by the manufacturer cannot be refunded.