P. Shanmugam, J. 1. In both these Original Petitions, the Kerala State Electricity Board is seeking for a direction to refund the amount paid by them as excise duty.
2. Petitioners' appeal before the Customs, Excise Gold Control Appellate Tribunal was allowed holding that they are not manufacturers and setting aside the orders of the Collector Central Excise. In the light of the judgment, petitioners applied for refund. Their applications were rejected in so far as a portion of the amount is concerned. The Collector of Central Excise (Appeals) has confirmed the said order. O.P. 3575/90 is filed challenging the orders dated 27-6-88 and 30-11-88 and also for a direction to return the excise duty of Rs. 52,336.32 paid under the mistake of law.
3. In O.P. 8369/1990 petitioners have requested for refund of the excise duty paid, a sum of Rs. 36,72,255/- on the basis of the judgment of the Customs, Excise Gold Control Appellate Tribunal dated 1-2-88 holding that the petitioner is not a manufacturer. The appeal against Tribunal's order filed by the Collector of Central Excise was also dismissed by the Supreme Court on 16-3-90. In the above circumstances, they filed this Original petition for a direction to refund the amount.
4. A Constitution Bench of the Supreme Court in Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247 (S.C.) = 1997 (5) S.C.C. 536] has taken the view that the relief for refund on the basis of misinterpretation or misapplying the provisions of Central Excises and Salt Act, 1944 read with Central Excise Tariff Act 1975 cannot be maintained under Article 226 of the Constitution of India. Their Lordships have laid down the principle in paragraph 108 of the judgment at Clause (viii) which reads thus :
"All pending matters shall, however, be governed by the law declared herein notwithstanding that the tax or duty has been refunded pending those proceedings, whether under the orders of an authority, Tribunal or Court or otherwise."
In Clause (x) of the said paragraph, their Lordships held that by virtue of Sub-section (3) to Section 11B of the Central Excises and Salt Act, as amended, all claims for refund (excepting those which arise as a result of declaration of unconstitutionality of a provision whereunder the levy was created) have to be preferred and adjudicated only under the provisions of the respective enactments. No suit for refund of duty is maintainable in that behalf. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11B, under Clause (xi) their Lordships observed that Section 11B applies to all pending proceedings. Ultimately, their Lordships in paragraph 109 directed that in cases where writ petitions are pending as on the date of judgment, and provided they have not already taken proceedings for refund under the Act, it shall be open to the petitioners/appellants/plaintiffs to file applications for refund under Section 11B within 60 days from the date of judgment which shall be dealt with according to law.
5. Petitioners have not made any such application under Section 11B within 60 days from the date of judgment viz., 19-12-96. Petitioners are not seeking for refund on the basis of declaration of unconstitutionality of any provision. Therefore, they have to make an application under Section 11B of the Central Excises and Salt Act for the purpose of seeking refund. However, since the time limit prescribed by the Hon'ble Supreme Court has expired, these Original Petitions have to be disposed of.
6. Petitioners have filed two affidavits dated 2-2-1990 stating that the excise duty paid by the KSEB has not been passed on to the consumers of electricity or any other person.
7. Learned counsel fairly concedes that their only course is to seek an extension of time to file their refund application before the Hon'ble Supreme Court.
Without prejudice to the right of the petitioners to seek appropriate relief, if any, before the Hon'ble Supreme Court, the Original Petitions are disposed of.