Page 157 - ELT_15th August 2020_Vol 373_Part 4

2020 ] SURETEX PROPHYLACTICS INDIA PVT. LTD. v. C.C.E., CUS. & S.T., BANGALORE 491

12. The effect of Section 11B, and in particular, applications for rebate be-
ing made within time, has been laid down in Mafatlal Industries Ltd. v. Un-
ion of India [[1997) 5 SCC 536] , thus : (SCC pp. 631-32, para 108).
“108. The discussion in the judgment yields the following proposi-
tions. We may forewarn that these propositions are set out merely
for the sake of convenient reference and are not supposed to be ex-
haustive. In case of any doubt or ambiguity in these propositions,
reference must be had to the discussion and propositions in the
body of the judgment.
(i) Where a refund of tax/duty is claimed on the ground that it has
been collected from the petitioner/plaintiff — whether before the
commencement of the Central Excise and Customs Laws (Amend-
ment) Act, 1991 or thereafter — by misinterpreting or misapplying
the provisions of the Central Excises and Salt Act, 1944 read with
Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Cus-
toms Tariff Act or by misinterpreting or misapplying any of the
rules, regulations or notifications issued under the said enactments,
such a claim has necessarily to be preferred under and in accordance
with the provisions of the respective enactments before the authori-
ties specified thereunder and within the period of limitation pre-
scribed therein. No suit is maintainable in that behalf. While the ju-
risdiction of the High Courts under Article 226 — and of this Court
under Article 32 — cannot be circumscribed by the provisions of the
said enactments, they will certainly have due regard to the legisla-
tive intent evidenced by the provisions of the said Acts and would
exercise their jurisdiction consistent with the provisions of the Act.
The writ petition will be considered and disposed of in the light of
and in accordance with the provisions of Section 11B. This is for the
reason that the power under Article 226 has to be exercised to effec-
tuate the rule of law and not for abrogating it.
The said enactments including Section 11B of the Central Excises and Salt
Act and Section 27 of the Customs Act do constitute ‘law’ within the mean-
ing of Article 265 of the Constitution of India and hence, any tax collected,
retained or not refunded in accordance with the said provisions must be
held to be collected, retained or not refunded, as the case may be, under the
authority of law. Both the enactments are self-contained enactments provid-
ing for levy, assessment, recovery and refund of duties imposed thereun-
der. Section 11-B of the Central Excises and Salt Act and Section 27 of the
Customs Act, both before and after the 1991 (Amendment) Act are constitu-
tionally valid and have to be followed and given effect to. Section 72 of the
Contract Act has no application to such a claim of refund and cannot form a
basis for maintaining a suit or a writ petition. All refund claims except
those mentioned under Proposition (ii) below have to be and must be filed
and adjudicated under the provisions of the Central Excises and Salt Act or
the Customs Act, as the case may be. It is necessary to emphasise in this be-
half that Act provides a complete mechanism for correcting any errors
whether of fact or law and that not only an appeal is provided to a Tribunal
— which is not a departmental organ — but to this Court, which is a civil
Court.”
(emphasis in original)
EXCISE LAW TIMES  15th August 2020  157