Page 99 - ELT_1st July 2020_Vol 373_Part 1

2020 ] STEEL AUTHORITY OF INDIA LTD. v. UNION OF INDIA 9
which does not permit the State to collect the tax or duty without authority of
law.
11. While on the one hand the fixed quantity exemption from whole of
the duty granted on 21-9-1994 in this case was consciously granted by the Central
Government knowing that supplies have already been made in January, 1994 the
same was successfully defeated partially by the Assessing Authority taking a
narrow and pedantic view of the limitation in the matter. It was open to the As-
sessing Authority to seek a clarification from his higher authorities, as to whether
the payment by the Assessee with regard to the clearance of these goods in ques-
tion could be treated as payment ‘under protest’ or not as the assessee itself is a
Government of India Undertaking, but instead of doing that, taking a shortcut
pro-revenue approach, the Adjudicating Authority thought it better to adopt a
negative approach of denying the refund on that ground, pushing the Govern-
ment of India Undertaking into the whirlpool of litigation, which resulted in se-
vere loss of public time and money and time of the valuable time of the Courts.
12. The refund is for clearances of goods in question pertains to period
from 1994. Already 26 years have passed due to one mistake in the decision-
taken by the Assessing Authority. The intention of Ad hoc exemption itself was a
glaring fact available before the Assessing Authority. Particularly the clarifica-
tion issued on 30-6-1995 makes it clear that exemption was applicable for the en-
tire quantity of good supplied but ignoring this fact, the Assessing Authority
passed an order denying the refund partially, invoking the technical plea of limi-
tation ignoring the exemption under the Second Proviso of Section 11B of the
Act, whereby no limitation would apply when payment of Duty is treated as
payment made ‘under protest’
1 11 It is this kind of negative attitude of the Revenue Authorities which
results in the legal battle between the Government of India Public Sector Under-
takings and the Revenue Department. On the other hand, it causes anguish to
this Court and is deprecable, to say the least. We are also also little bit surprised
by the reasons assigned by the CESTAT in distinguishing the clear Judgment of
Kolkata High Court in the case of Assistant Collector of Central Excise, Calcutta v.
Bata Shoe Co. (P) Ltd (supra). In that case, where the Cotton fabrics, covered by the
tariff item “friction cloth” was a raw material for the manufacture of shoes under
the Notification dated 1-8-1960 issued by the Department, the Government im-
posed the levy on the said item. Bata Shoe Co. started making payments of duty
from the said date ‘under protest’. While doing so, they represented to Govern-
ment of India, Ministry of Finance for exemption from payment of duty on the
fabrics and ultimately, on 26-9-1963, the Central Board of Revenue informed
them that no duty was payable on ‘friction cloth’. On the basis of the Board’s let-
ter dated 26-9-1963, the shoe company applied for refund of the duty paid on the
fabric from 24-4-1962 to 17-6-1966. The original authority rejected the claim for
refund of the duty paid for the period prior to 26-9-1963 and allowed refund for
the subsequent period. The rejection of the refund claim for the period prior to
26-9-1963 was challenged by the company. The Calcutta High Court allowed the
Writ Petition filed by the Assessee therein by holding that Board’s letter dated
26-9-1963 was in the nature of clarification of the prevailing law on the point and
that the payment of duty by the assessee for the aforesaid period was not occa-
sioned by their mistake or misconception. On the other hand, the Court held that
the payment of duty was of a purely compulsive mode of recovery by the Reve-
nue on the basis of misconception of the Revenue authorities, which was clarified
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1 Paragraph number as per official text.
EXCISE LAW TIMES  1st July 2020  99