1. This appeal is directed against the order of the Appellate Collector of Central Excise, Bombay, dated 9th April, 1979. Originally it was filed as a Revision Application by the Central Government and on transfer it has been registered as an appeal.
2. The Appellants manufactured industrial tyres which were originally assessed under item 16 of the Central Excise Tariff. Later, however, on 5th March, 1974, they filed a fresh classification list asking for re-classification which was approved by the Assistant Collector of Central Excise. On 15-4-1976, the Appellants filed refund claims for the period 14-6-1971 to 5th March, 1974. The Assistant Collector of Central Excise allowed the refund of the excise duty for the period of one year 14-4-1973 to 15-4-1974, but the balance amount was not allowed as it was held to be barred by limitation. The learned Counsel has further stated that they received a cheque for Rs. 29,388.17 paise dated 20lh May, 1975 by a forwarding letter of the same date.
3. On 21st May, 1976, a show cause notice was issued to the Appellants stating that the refund amount which had been allowed, but had not passed on to the customers, be added to the assessable value and be also subjected to payment of excise duty. (This amount was calculated to be Rs. 4,988). A reply was sent by the appellants but their contention was not accepted and the demand was confirmed. An appeal was preferred before the Appellate Collector who rejected the same on 9th April 1979. This is now the subject matter of this appeal.
4. The Appellate Collector has stated that the demand was not time-barred since it was sanctioned by the Assistant Collector on 24-5-1975, while the demand notices were issued on 21-5-1976 and 18-5-1976. The learned Counsel for the appellants has stated that this demand was made under Rule 10 of the Central Excise Rules and that there has been a factual mistake in stating the date of the issue of the cheque. It is pointed out that it had been issued on 20th May, 1975 and not on. 30th May, 1975, as stated by the Appellate Collector. It is further contended that the date of the issue of the cheque is the relevant date for the determination of the period of limitation and in support of this argument the learned Counsel has relied on the Bombay High Court decision : Vidarbha Mills Barar Ltd. and Ors. v. Collector of Central Excise, Nagpur, 1979 ELT (J 555), where it was held that :-- "the words 'from the date of making the refund' under Rule 10, postulate the date when refund vouchers are issued by the Department and not the date when such vouchers are encashed. Therefore, the date of the issue of voucher is the date from which the period of limitation relevant for issue of a show cause notice in the case of recovery of refund erroneously granted is to be computed." 5. The learned representative of the respondents has not been able to put forward any authority where a different view had been taken. We follow the Bombay High Court decision and hold that the date of the issue of the cheque viz., 20th May, 1975 is the date which has to be considered for the purposes of limitation under Rule 10 and not 30th May, 1975 which had been wrongly stated. The show-cause notice was issued after the expiry of one year and, therefore, it was time-barred.
6. We thus set aside the findings of the Appellate Collector and hold that the show-cause notice should have been discharged. Consequently the sum of Rs. 4,898/- is not payable as held by the Appellate Collector. A further demand of Rs. 310.30 has also been made from the appellants. This was also sustained by the Appellate Collector. The learned Counsel for the Appellants, has not pressed for this amount.
7. In the result, we partly accept this appeal in respect of Rs. 4,898/-and modify the order of the Collector accordingly. The appeal is disposed of in these terms.