1.These appeals arise out of the Orders No. S/49-121/80 DBK dated 24-7-1980 and No. S/49-158/80 DBK dated 25-9-1980 passed by the Appellate Collector by which he rejected the appellants claim for drawback. Feeling aggrieved, the appellants preferred a revision application before the Central Government which stood statutorily transferred to the Tribunal for being heard as an appeal. When the matter came up before this Bench on 12-9-1983 it was noticed that the appellants ought to have preferred two revision applications as there were two orders passed against them. The appellants were therefore given an option to file one more appeal before the Tribunal after fulfilling the formalities including an application for condonation of delay. Accordingly, the appellants preferred another appeal No. 1318 of 1984. It was admitted.
2. As common questions of facts and law are involved in both the appeals, they were taken up for consideration together and hence this common order.
3. The appellants claimed drawback in respect of export of Colour Chem Black FBRK and Colour Chem Black FPV and the claim was made under sub-serial No. 1303 of the drawback schedule of 1978-79. The Assistant Collector who considered the claim rejected the same on the ground that no drawback was admissible for their products under sub-serial No.1303. In appeal the Appellate Collector confirmed the orders passed by the Assistant Collector.
4. During the hearing Shri S. Vishwanathan the authorised representative of the appellants brought to our notice that by reason of the classification made by the Central Excise Department they treated their products as organic though in fact they were inorganic.
He further submitted that in the revision filed against Central Excise classification the Revisional Authority classified their products as inorganic. Shri Vishwanathan, further, submitted that even before the learned Assistant Collector passed the orders they had in April, 1980 made an application before the Assistant Collector to keep their claims pending as they had made an application to Government of India for fixation of brand rate for their products. Shri Vishwanathan also brought to our notice that on their application the Government of India by its order dated 17th Nov., 1980 did fix the brand rate fixing the effective period as 14-11-1977 to 18-9-1980 for the product Colour Chem Black FBRK and the effective period as 14-2-1978 to 13-12-1980 for their product Colour Chem Black FPV. Shri Vishwanathan submitted that the learned Assistant Collector was not justified in disposing of the drawback claims without waiting, for the fixation of brand rate. He also submitted that at the appellate stage before the Appellate Collector the appellants have explained the circumstances under which they made the claim under sub-serial No. 1303 and that the learned Appellate Collector without considering their contentions rejected their appeals. He therefore prayed that the orders of the authorities below may be set aside and drawback may be ordered at the rate now fixed by the Government of India.
5. Shri Krishan Kumar, for. the respondent Collector however, contended that admittedly the claim of the appellant was under sub-serial No.1303 and at the relevant time there was no drawback admissible under sub- serial No. 1303 to the appellants' product and therefore the authorities below were justified in rejecting the claim. Shri Krishan Kumar also submitted that after the fixation of the brand rate it would have been open to the appellants to approach the drawback department and they have not done so and as such their appeals may be dismissed.
6. We have considered the submissions made on both sides. From the records we find that the appellants as early as on 18th April, 1980 did make a request to the Assistant Collector to keep pending their drawback claims till the brand rate is fixed by the Government of India but then in his order the Assistant Collector has not considered this request. He has not said that the matter could not be kept pending till the drawback rate is fixed by the Government of India. His order is totally silent with regard to the request made by the appellant. The order of the Appellate Collector is also silent with regard to the request made by the appellant. As a matter of fact in one of the appeals the Appellate Collector himself refers to the contentions of the appellants that drawback rates shall have to be fixed under sub-serial No. 1401. Assuming that the Assistant Collector and the Appellate Collector was justified in rejecting the claim under sub-serial No. 1303 they committed an error in not considering the application made by the appellants. In the said circumstances we consider that there has been a denial of principles of natural justice.
We, therefore, set aside the orders of both the authorities and remand the case for fresh consideration to the Assistant Collector in the light of the observations contained in this order. The Assistant Collector shall also consider the claim under sub-serial No. 1401 by reason of the brand rate fixed by the Govt. of India in their order dated 17th Nov., 1980. The Assistant Collector shall dispose of this matter within a period of 6 months from the date of receipt of the records.