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Mohan Jute Bags Manufacturing Co. Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1984)(16)ELT651Tri(Kol.)kata
AppellantMohan Jute Bags Manufacturing Co.
RespondentCollector of Central Excise
Excerpt:
.....the appellant has also not complied with the formalities as envisaged in chapter ix of the central excise rules, 1944 while exporting the jute bags. the appellant has filed the rebate claims as under :--------------------- -----------------------------------------------appeal no. amount of date of date of date of filing rebate clearance export of rebate claim----------------- --- ---------------------------------------------2. ed(cal)-465/83 rs. 1866.91 11-2-82 31-3-82 26-7-82---------------------------------------------------------------------- 4. on merit shri p.k. agarwal, sole proprietor of the appellant concern has submitted that the appellant is duly registered with the jute commissioner, east india jute & hessian exchange ltd., calcutta and the appellant has earned valuable.....
Judgment:
1. Mohan Jute Bags Mfg. Co., 5/1, Clive Row, Calcutta-700 001 has filed two appeals being aggrieved from Order Nos. 1047/82, dated 21-10-1982 and 1048/82, dated 5-11-1982 passed by the Additional Collector, Central Excise, Calcutta. Both the appeals were registered in the Registry vide Appeal Nos. 464/83 & 465/83 and both the appeals were presented in the Registry on the 2nd day of November, 1983. In column No. 3 of the Memorandum of Appeal Nos. 464/83 & 465/83, the date of service has been mentioned as 21st February, 1983 and 28th February, 1983 respectively. The appellant has filed applications dated 14th December, 1983 for condonation of delay stating therein that the appeals were filed before the Collector (Appeals) on 16th May and 9th May, 1983 respectively. The Collector (Appeals) had returned the said appeals to the appellant on the 31st day of August, 1983 stating that they should file the appeals before the Customs, Excise & Gold (Control) Appellate Tribunal, Last Regional Bench, Calcutta. The appellant has also attached with both the appeals the original memorandum of appeals filed with the Collector (Appeals) bearing the receipt stamp of the said office.

2. Shri P.K. Agarwal, the sole proprietor of the appellant concern has appeared and has stated that there are judgments of the East Regional Bench, Calcutta to the effect that the appeal from the order passed by the Additional Collector lies with the Collector (Appeals) and as such the appellant had a bona fide belief that the appeals had to be filed before the Collector (Appeals) and the appellant had filed both the appeals in the office of the Collector (Appeals) within the stipulated period with an honest and bona fide belief that the appeal lies with the Collector (Appeals). Shri P.K. Agarwal has stated that there is no wilful neglect or omission on the part of the appellant in any way. The appellant had received back the papers on the 31st day of August, 1983 and had filed the appeals before the Tribunal on the 2nd day of November, 1983 with necessary fee. The appellant was not conversant with the working of the Tribunal and it took him some time for filing the appeals before the Tribunal in the drafting of the documents and keeping copies thereof. He has pleaded that the appellent was prevented by sufficient cause and the delay should be condoned.

3. In both the appeals a common point is involved and as such the same are being disposed of by a consolidated order. The brief facts of the case are that the appellant is a sole proprietary concern registered with the Government of West Bengal as a small-scale manufacturer and was engaged in the manufacture of jute bags and different sizes as per buyers' choice out of duty paid jute cloth falling under C.E.T. 22A and disposed of the same for home consumption as well as export. The hessian cloth was purchased by the appellant from some other factory who had duly paid the Central Excise duty on the same. The appellant has claimed the duty paid on hessian cloth as rebate. Although the appellant had exported jute bags the appellant is neither in the possession of any Central Excise licence nor the appellant has complied with the formalities under the Central Excise Act. The appellant has also not complied with the formalities as envisaged in Chapter IX of the Central Excise Rules, 1944 while exporting the jute bags. The appellant has filed the rebate claims as under :--------------------- -----------------------------------------------Appeal No. Amount of Date of Date of Date of filing rebate clearance Export of rebate claim----------------- --- ---------------------------------------------2. ED(CAL)-465/83 Rs. 1866.91 11-2-82 31-3-82 26-7-82---------------------------------------------------------------------- 4. On merit Shri P.K. Agarwal, Sole Proprietor of the appellant concern has submitted that the appellant is duly registered with the Jute Commissioner, East India Jute & Hessian Exchange Ltd., Calcutta and the appellant has earned valuable foreign exchange by exporting jute bags.

He has submitted that the appellant was not conversant with the procedure of the Central Excise Act & Rules and the appellant had duly filed the claims for refund in time. He has reiterated the facts stated above. He has also submitted that the G.P. Is were also duly filed and as such the appellant's both the appeals should be accepted and the appellant's claims for refund of duty should be accepted.

5. In reply Shri A.K. Saha, Senior Departmental Representative has pleaded that the appellant is not registered with the Central Excise authorities and does not hold any licence and does not observe the procedures provided in Chapter IX of the Central Excise Rules and in particular has referred to rule 185 of the Central Excise Rules, 1944.

He has further pleaded that A.R. 4 and A.R. 4A have to be prepared.

A.R. 4 is to be prepared where the examination is in the factory and A.R. 4A is to be prepared where the examination is to be done by the Customs at the port. Whereas in the case of appellant neither A.R. 4 nor A.R. 4A has been prepared. He has also referred to the judgment of this Court in Order No. 220/Cal./83, dated 10-7-1983 in the case of Trade & Industries Private Ltd., Calcutta v. Collector of Central Excise, Shillong. The learned Senior Departmental Representative has also submitted that if the appellant says that he is the manufacturer then he comes under the ambit of rule 12A. There is no notification to this effect by the Central Government and as such the appellant is not entitled to rebate under rule 12A of the Central Excise Rules, 1944 and the appellent's appeals should be dismissed. He has also submitted that there is no correlation of the goods in the sense that they have actually removed the goods on which the duty liability has been discharged. He has also referred to the judgment in the case of Hindustan Steel Ltd., Villai v. Union of India reported in 1979 E.L.T.J 33 and it is Madhya Pradesh High Court judgment. In this judgment the Hon'ble High Court has held that to avail of set off or refund of duty, the burden lies on the assessee to satisfy the Excise Authorities that he is entitled to set off/refund of duty. He has also referred to the judgment of the Calcutta High Court in the case of Inchek Tyres v.Assistant Collector of Customs reported in 1979 E.L.T. J 236 wherein it was held that where the petitioner wants to get refund the petitioner is bound by such conditions imposed by such statute which has conferred such right, The learned Senior Departmental Representative has pleaded that in the instant cases the appellant has not complied with the requirement of the statute i.e., he has not followed the Chapter IX procedure and also has not observed the formalities prescribed under rule 185 of the Central Excise Rules, 1944, Moreover he has got no licence under the Central Excise Rules and as such the appellant is not entitled to get the refund and the appeals filed by the appellant should be dismissed.

6. In reply Shri P.K. Agarwal, Sole Proprietor of the appellant concern has pleaded that since the appellant concern is not registered with the Central Excise Authorities and as such the appellant was not under any legal obligation to furnish A.R. 4 and as such the question of furnishing of A.R. 4 does not arise at all. He has submitted that there is correlation with the goods as the appellant concern had been duly registered with the Jute Commissioner. He has pleaded that the Nos. of G.P. 1 as well as the Nos. of the shipping bills duly tallied with each other and as such there is a complete correlation. He has also pleaded that certificates from the mills are already on record.

7. After hearing both the sides and on going through the facts and circumstances of the cases I hold that the appellant was prevented by sufficient cause in the late filing of the appeals before the Tribunal.

The appellant had filed the appeals before the Collector (Appeals) within the limitation and the appellant had filed the appeals with the honest belief due to the judgment of this Court that in the case of order passed by the Additional Collector the appeal lies with the Collector (Appeals). Thus the delay in filing the appeals to this Court is condoned. However, keeping in view the judgment of the Calcutta High Court in the case of Inchek Tyres v. Assistant Collector of Customs reported in 1979 E.L.T. J 236 and also the discussions above I hold that the appellant is not entitled to the refund of Rs. 9534.40 & Rs. 1866.91 as the appellant has not complied with the requirements of the procedure under Chapter IX of the Central Excise Rules, 1944. Mere registration with the Jute Commissioner does not help the appellant. In the result both the appeals filed by the appellant are dismissed.


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