U.P. State Cement Corpn. Ltd. and ors. Vs. Cegat and ors. - Court Judgment

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held: writ - alternative remedy--tribunal's rejection of application under cea: section 35g for reference of a question of law to the high court--writ petition does not lie, as alternative remedy is available for moving an application before the high court under section 35g(3)--constitution of india: article 226; cea: section 35g(3).;2. refund - cement--adjustment of duty paid on raw materials/inputs against duty payable on cement--conditions/procedure laid down for availing exemption not complied with. claim rightly rejected. cea: section 11b.;3. refund - unjust enrichment--claimant not claiming that the duty incidence has not been passed on to buyers--refund not admissible--cea: section 11b.;petition dismissed. - land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. m.c. agarwal, j.1. by this petition under article 226 of the constitution of india, the petitioner, namely, u.p. state cement corporation ltd. challenges an order dated 12.12.1995 passed by the customs, excise and gold (control) appellate tribunal, new delhi dismissing the appellant's appeal and an order dated 16.6.1996 by which it dismissed the petitioner's application under section 35g requiring it to refer an alleged question of law for the opinion of the court.2.i have heard shri dilip gupta, learned counsel for the petitioner. no one has appeared on behalf of union of india.3. as regards the rejection of the application under section 35g the petitioner's remedy lies under sub-section (3) of section 35g by moving an appropriate application before the high court. no writ petition on that aspect of the matter, therefore, lies.4. as regards the appeal the facts are that the petitioner set up a cement factory and started manufacturing cement somewhere in the year 1980. in the manufacturing of cement it used slag as one of the raw material which was purchased from m/s. bokaro steel ltd. and excise duty was paid thereon. by a notification dated 4th june, 1979 the government of india had ordered that the excise duty paid on goods used as a raw material or inputs could be adjusted from the excise duty payable on the final product. for this a detailed procedure was laid down in the said notification which provided inter alia that a manufacturer shall give a declaration to the superintendent of central excise having jurisdiction over his factory, indicating the full description of the goods intended to be manufactured in his factory and the full description of the inputs intended to be used; a manufacturer was permitted to take credit of the duty already paid on the inputs which are received by him after submitting the declaration and utilises such credit for payment of duty of excise on the said goods, a manufacturer shall give prior notice to the proper officer before the excise duty paid inputs are received in his factory to enable the proper officer to be present at the time of the receipt of the inputs.5. the petitioner's case is that it was not aware of the said notification and hence did not take credit for the excise duty paid on the slag. it was after march, 1984 that petitioner came to know of the said notification and started taking credit for the duty paid on the slag and made a claim for refund of the excise duty paid on the cement to the extent of the excise duty on the slag. this claim which amounted to rs. 51,47,147.27 paise and supplementary claim of rs. 1,48,237.66 paise has been rejected by the collector on the ground that the conditions of prior notice etc. as laid down in the aforesaid notification were not complied with. the tribunal has also dismissed the petitioner's appeal for the same reason. the petitioner's appeal was heard ex parte as no one appeared on its behalf. the petitioner's grievance is that it was not given any notice of the adjourned date of hearing and it has moved an application for setting aside the ex parte order passed in the appeal which is pending before the tribunal.6. patently, the petitioner did not take any credit for the excise duty paid on slag and paid full excise duty on the cement manufactured by it voluntarily as according to its own showing it was not aware of the notification granting concession. therefore, there was no question of the petitioner complying with the procedure laid down in the notification. the petitioner's case is, however, is that it had submitted various returns to the officer concerned from which the relevant information was available and, therefore, the petitioner should have been granted the refund of the excise duty wrongly paid by it.7. i have considered the submissions made by shri dilip gupta. it is settled law that a person who claims exemption or a benefit under some circular or notification must comply with the conditions and procedure laid down in the circular of the notification. in this case admittedly, it was not done. the notification does not contemplate payment of duty and its subsequent refund. it authorises the manufacturer to himself take credit of the duty already paid on the inputs which are received by him after submitting the declaration. no declaration as contemplated in the notification was ever submitted nor petitioner took credit for the duty paid on the inputs. therefore, the collector was in my view right in rejection the claim for refund and the tribunal rightly dismissed the appeal.8. section 11b of the central excises and salt act that deals with claim for refund of duty provides that the claimant has to establish that the incidence of such duty has not been passed on by him to any other person. payment of excise duty on inputs is an expenditure that is accounted for the cost of the production of the goods and the incidence of such expenditure is passed on to the ultimate consumer. the petitioner at no stage claimed that the incidence of the excise duty was not passed on to the persons who purchased cement from it.9. reliance is placed on m/s. bombay chemical private limited v. collector of central excise : 1995(77)elt3(sc) and formica india division v. collector of central excise 1995 supp. (3) scc 552. both these cases relate to different facts and circumstances and are not germane to the present case.10. for the above reasons, this writ petition has no force and is dismissed in limine.