Page 277 - ELT_1st September 2020_Vol 373_Part 5

2020 ] GRAVITA INDIA LTD. v. COMMR. OF C. EX. & CENTRAL GOODS & S.T., JAIPUR 715
and filed claim of refund for SAD in terms of Notification No. 102/2007. The said
refund claim was rejected on the basis of Public Notice No. 6/2014, dated 18-4-
2013 which provide that duty payment through script on refund claim is not
admissible. Against the said order, appellant is before me.
3. Learned Counsel appearing for the appellant submits that as per No-
tification, the mode of payment of duty has not been prescribed and the duty
was paid by utilising duty paying scrip has been accepted as duty paid by the
appellant at the time of clearance of goods. Therefore, the Public Notice issued,
later on, subsequent to notification have no value in law as held by Delhi High
Court in the case of Allen Diesel India Pvt. Limited v. Union of India - 2016 (334)
E.L.T. 624 (Del.). Therefore, refund claim be sanctioned.
4. On the other hand, Learned Authorised Representative appearing
for the Revenue submits that relying on the decision in the case of Allen Diesel
India Pvt. Limited (supra), the Hon’ble Delhi High Court has allowed the benefit
to the petitioner in the case of M.F. Rings & Bearing Races Ltd. v. Commissioner of
Customs - 2016 (337) E.L.T. 17 (Del.) and the said order of the Hon’ble Delhi High
Court has been stayed by the Hon’ble Apex Court. Therefore, the law laid down
by the Delhi High Court in the case of Allen Diesel India Pvt. Limited (supra) is not
a good law. Therefore, the refund claim is rightly rejected.
5. Heard the parties considered the submissions.
6. On going through the decision of the Hon’ble Delhi High Court in
the case of Allen Diesel India Pvt. Limited (supra) wherein the Hon’ble High Court
observed that :-
“21. The rejection of the petitioner’s refund applications by the order dat-
ed 16th May, 2014 and 20th May, 2014, on the above grounds, is held to be
bad in law and the said orders are hereby set aside. Since the petitioner has
fulfilled the conditions set out in Notification No. 102/2007-Customs for
availing of the refund, the Department is directed to issue orders granting
refund to the petitioner, as prayed for by it in its four refund applications
dated 8th October, 2013, 22nd November, 2013, 16th December, 2013 and
21st December, 2014 not later than four weeks from today. The petitioner’s
entitlement to interest on the amount of refund will also be considered and
granted in accordance with law within the same period of four weeks from
today.”
7. Admittedly, in Notification No. 102/2007-Cus. there is no restriction
to pay duty by utilisation of duty paid script. Therefore, the Public Notice dated
18-4-2013 is no application for rejection of refund claim of SAD paid by utilisa-
tion of duty paid script. The argument of Learned AR relying in the case of M.F.
Rings & Bearings (supra) to say that the order of the Hon’ble High Court has been
stayed by the Hon’ble Apex Court have no significance as held by the Hon’ble
Delhi High Court in the case of Principal Commissioner of C. Ex., Delhi-I v. Space
Telelink Ltd. - 2017 (355) E.L.T. 189 (Del.) wherein the Hon’ble High Court held
that although the order has been stayed by the higher forum will not loose its
legality unless and until the order is set aside. Therefore, I hold that the appellant
is entitled for refund of the SAD paid by utilisation of duty paid script.
8. In these terms, the impugned order is set aside and the appeal is al-
lowed.
(Dictated and pronounced in open Court)
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EXCISE LAW TIMES  1st September 2020  277