ORDER A.P. Misra, J.
1. Rejoinder affidavit has been filed today.
2. Heard learned counsel for the petitioner and also the learned standing counsel.
3. In view of the exchange of affidavits in accordance with the Rules of the Court, the present writ petition is being disposed of finally at the state of admission.
4. The petitioner seeks quashing of Memorandum No. 114/90 dated 4th June, 1990 passed by the Assistant Collector of Central Excise Division III, Ghaziabad-respondent No. 2 and further directing the respondent to refund the duty amounting to Rs. 1,54,865.56 paise levied and collected from the petitioner during October, 1984. The petitioner is manufacturing cold rolled strips using duty paid hot rolled strips and claimed reduction in the rate of duty on such cold rolled strips under Notification No. C.E. 209/83. Initially the concession of reduction of duty at Rs. ISO/- per metric ton were granted, but subsequently it was withdrawn on the ground that annealing is only a finishing process where electric furnace is used and cold rolled strips are produced before the use of electric furnace. The petitioner appeal against the withdrawal of the concession before the Collector of Appeals, New Delhi, who also denied the concession granted by the said notification. Thereafter the petitioner went in appeal before the Tribunal who allowed the appeal and held that the petitioner was entitled for the reduction in duty envisaged in the Notification No. C.E. 209/83. In subsequent thereof the petitioner filed a refund claim of Rs. 19,09,029.43 paise, but the Assistant Collector, Central Excise, Division III, vide letter dated 11th November, 1986 sanctioned the refund of Rs. 16,02,909.36 p. and deducted Rs. 3,06,120.07 paise. The petitioner again went in appeal before the Collector (Appeals), who allowed the appeal vide order dated 15th April, 1988 with the observation that the refund of duty should be allowed subject to verification of the same. Finally the Assistant Collector, Central Excise Division III, Ghaziabad, by means of impugned order dated 4th June, 1990 which is Annexure - 8 to the writ petition, sanctioned an amount of Rs. 1,52,674.89 paise, out of the aforesaid amount and denied the claim of refund for Rs. 1,54,865.56 paise. It is this denial of refund by means of impugned order is subject matter of challenge before us.
5. Learned Counsel for the petitioner urged that the reason for rejecting the said claim is unsustainable. The impugned order refusing to grant exemption for the amount referred to therein is only on the ground that duty paid character was not fully ascertained in the absence of P.L.A. (Personal Ledger Account) and R.G. 23 Pt. II and T.R. 6. The contention on behalf of the petitioner is that since records of October, 1984 were burnt in riots, therefore, it was not possible for filing those documents before the said authority. However, the secondary evidence specially gate pass pertaining to October, 1984 were all filed without the gate passes alongwith Bank Account showing the payments for the relevant month in question were all filed, but the said authority, without applying its mind on the same, rejected the claim of the petitioner. This approach of the said authority is illegal specially in view of the fact that the said documents were burnt in the riots and the petitioner could under no circumstances have produced those documents.
6. Having heard learned counsel for the parties we find that as per Range Officer's report no records are available either with him or with the party to verify the duty paid character. The party has submitted gate pass of some clearance, but in absence of P.L.A. and R.G. 23 Ft. II and T.R. 6 the duty paid character cannot be fully ascertained. In October 1984 riots the records are said to have been burnt and the party had not filed any R.T.I 2 in November, 1984. The aforesaid report shows that even during the enquiry the records were not available on account of the riots and burning of those documents in October, 1984. It seems that the said report in verbatim has been incorporated in the impugned order in the subsequent paragraph to refuse the refund claim of the petitioner. Normally in the absence of any primary documents such an order could be said to be sustainable, but in a case which has not been denied even in the impugned order regarding burning of documents in the riots in October, 1984. the refusal of refund only on the ground of non-production of the very document which is said to have been burnt, is not sustainable. It is open to the authority to come to the conclusion that the case set up regarding burning of documents is false, but in a case that is not disbelieved in the absence of documents which is said to have been burnt it is incumbent duty of the authority to consider other documents filed by him before the said authority, whether the inference of character of duty paid could be arrived at or not. In the absence of any document on account of it being looted or burnt the principle again is settled to permit a person to file the secondary or other such evidence to substantiate the claim before the authority by means of circumstantial or secondary evidence which is with him and the authority thereafter could after considering the said documents and after taking into consideration the documents of the department draw its own inference in accordance with law. If the petitioner could be said to have proved on the basis of the such documents the authority has to draw inference accordingly. However, the refusal of claim only on account of petitioner's not being able to file the P.L.A. and R.G. 23 Pt. II and T.R. 6 is not sustainable.
At this juncture the learned counsel for Union of India drew our attention to the amendment made under Section 11B of the Central Excises and Salt Act, 1944. By means of amendment by Central Excises and Customs Laws (Amendment) Act, 1991, the amendment has been made both in Sub-section (I/) of the proviso to the said Section. It is urged in view of this amendment which would also be applicable to the pending claim of an application to refund the burden shifts on the petitioner to prove that it has not collected the amount from the customers for which he is making claim of refund. For this learned counsel for the petitioner urged that this amendment would not be applicable so far as the petitioner is concerned since his refund application was decided much earlier by the Assistant Collector. We find in this present case what was decided earlier by the Assistant Collector was allowing the refund subject to the verification to be done by the Assistant Collector and the present disputed amount still remains to be finally disposed of because the refund itself was subject to this and what was still to be done for disposing of the refund claim of the petitioner if it remains pending it would be covered by the aforesaid amendment of 1991. The petitioner further in the alternative has drawn our attention to the show cause notice issued by the Assistant Collector (Annexure A-6 to the writ petition) wherein specifically the question was raised regarding this unjust and undue enrichment by the petitioner. It is true that it is specifically mentioned in the show cause notice for the scrutiny of the refund claim "It appears that the petitioner has already collected the duty paid both from the customers and no proof of refund back of duty was adduced". The argument is that since the show cause notice specifically mentions and the impugned order rejects the claim of the petitioner confining to non-production of certain documents as aforesaid, it should be treated that the petitioner has proved his case pertaining to this aspect and hence that cannot be raised on behalf of the respondents. Since we are sending back the matter to the Assistant Collector -respondent No. 2 for fresh decision in the matter, we are not expressing anything in respect of the latter argument. In the present case we do not find application of mind of the respondent pertaining to the aforesaid portion of the show cause notice and since refund claim is still pending, in view of the aforesaid amendment, it is for the parties to make their submissions before the said authority pertaining to this aspect also for consideration on the facts and circumstances of the case.
7. So far as the present case is concerned we find that the impugned order dated 4th June, 1990 (Annexure A-8 to the writ petition) refusing the claim of the petitioner for an amount of Rs. 1,52,674.59 paise, is not sustainable in the eyes of law. The same is quashed. We direct further the Assistant Collector concerned, respondent No. 2 to decide afresh in the light of observations made by us above in accordance with law preferably within a period of three months of filing of a certified copy of this order before the said authority. With aforesaid observations, the present writ petition is allowed. Costs on the parties.