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Shri Ambica Khandsari Udyog Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(21)ELT281TriDel
AppellantShri Ambica Khandsari Udyog
RespondentCollector of Central Excise
Excerpt:
.....on 25-8-1982. the issue involved falls within a very narrow compass; namely, as to whether the refund claim filed by the appellants in respect to duties paid on 4-2-1978, and 25-2-1978, and given to the superintendent of the central excise, hardwar, on 31-7-1978, could be considered to be barred by time for the reason that it came to the assistant collector on 26-8-1978.2. the assistant collector rejected the claim on the ground, holding that the claim reached him after the expiry of the period of six months as i stipulated by rule 11. the appeal to the appellate collector was also dismissed, who confirmed the assistant collector's view.3. the appellants, in the appeal before us, plead that refund claim, which was addressed by them to the assistant collector, had been accepted by the.....
Judgment:
1. This appeal to the Tribunal is directed against an order passed by Collector (Appeals), Central Excise, New Delhi, On 25-8-1982. The issue involved falls within a very narrow compass; namely, as to whether the refund claim filed by the appellants in respect to duties paid on 4-2-1978, and 25-2-1978, and given to the Superintendent of the Central Excise, Hardwar, on 31-7-1978, could be considered to be barred by time for the reason that it came to the Assistant Collector on 26-8-1978.

2. The Assistant Collector rejected the claim on the ground, holding that the claim reached him after the expiry of the period of six months as I stipulated by Rule 11. The Appeal to the Appellate Collector was also dismissed, who confirmed the Assistant Collector's view.

3. The appellants, in the Appeal before us, plead that refund claim, which was addressed by them to the Assistant Collector, had been accepted by the Jurisdictional Superintendent on behalf of the Assistant Collector, as he formed part of Central Excise Division, Saharanpur, and accordingly for the purpose of computing the period of limitation under Rule 11, date of receipt by the Superintendent should be deemed to be the receipt by the Assistant Collector. It is further contended that it was a practice at the time to submit refund claims through the Sector/Range Officer, which fact is corroborated by Trade Notice issued by the Kanpur Collectorate; being Trade Notice No.206/1980. The appellants add that their unit during the year 1978, to which period the refund claim relates, formed part of the earstwhile Kanpur Central Excise Collectorate. The appellants also contend that rejection of the refund claim, without issuance of show cause notice to the appellants, also amounted to denial of natural justice.

4. Shri Rameshwar Singh, Consultant, appeared for the appellants when the Appeal was taken up for hearing whereas the Department was represented by Shri S.C. Rohatgi. Shri Rameshwar Singh reiterated the pleas, set out in the grounds of appeal, to the effect that Range Superintendent at Hardwar was part of the Office of the Assistant Collector and, according to the practice prevalent at the time, refund claims were being filed in the office of the Superintendent who was the Range Officer and that this fact is evidenced by a Trade Notice referred to in their appeal; copy whereof has been filed by them. He also handed over a copy of the refund claim, as directed on the earlier hearing, as well as copy of their Memorandum of Appeal, addressed to the Appellate Collector. He further argued that the very fact that the Superintendent had accepted the application, and forwarded the same to the Assistant Collector establishes the existence of such a practice being allowed by the Department, and that the appellants could not be deprived of their legitimate dues, to refund of duty, erroneously paid, on this technical ground.

5. Shri Rohatgi, the learned Departmental Representative, defended the orders passed by the lower authorities, arguing that Assistant Collector being the proper officer who had to sanction refund, the application had to be presented to him and that since on the date, on which the application reached the Assistant Collector, six months' period had already expired; the refund claim was rightly rejected as time-barred, and that there was no infirmity in the view taken by the lower authorities.

6. We have given our careful thought to the matter. We find that the only requirement of law, as contemplated vide Rule 11 of the Central Excise Rules, 1944, as then prevailing, was that the application for refund has to be made to the Assistant Collector.

7. We find justification in the appellants' plea that the tenor of the wording of Trade Notice No. 206 of 1980 indicates that in April 1979, a Trade Notice had to be issued to the effect that applications for refund should be made only to the Assistant Collector of Central Excise having jurisdiction, and not to any officer other than the Assistant Collector. This leads to the reasonable inference that, before that, there must have been a practice where applications for refund were being presented to, and correspondingly accepted by, the Superintendents and even by lower officers. The period when the appellants' refund claim was filed relates to 1978. In the absence of anything to the contrary, we can reasonably infer from this Trade Notice that, at least in 1978, the practice was that refund claims could be presented to the Superintendent. This inference is re-inforced from the fact that the Superintendent did entertain a refund claim filed by the appellants and passed it on to the Assistant Collector's Office. Had there been no such practice, as pleaded by the appellants, there was no reason as to why the refund application presented to the Superintendent was not returned to the appellants for being filed before proper authority.

8. It was also not disputed before us that the Range Superintendent's Office was a part of the establishment of the Assistant Collector's Office. The application having been addressed to the Assistant Collector, and filed in the office of the Superintendent where, presumably, the duty has been paid, in our view, should be held sufficient to meet the requirement. We find that the term 'make' has nowhere been defined in the rules but, according to the meaning ascribed to this term in New Webster's Dictionary, Deluxe Encyclopedic Edition, one of the meaning given to this expression is : 'to frame or construct'. In this view of the matter, we have no hesitation in saying that the act of the application having been addressed to the Assistant Collector, and having been presented to the jurisdictional Range Superintendent who entertained the same and passed it on to the office of the Assistant Collector, has to be held to be tantamount to making application to the Assistant Collector; particularly when the appellants have been able to establish by reference to the Trade Notice, issued by the Collectorate, that at the relevant time such a practice was allowed.

9. We also find justification in appellants' plea that there had been a violation of the principles of natural justice inasmuch as their refund claim was rejected without any show cause notice, because had any such notice been given, the appellants may have succeeded in satisfying the Assistant Collector on the basis of the existing practice that their claim was not liable to be rejected.

10. The judgment of the Single Member, on which the learned Departmental Representative placed reliance, as reported in '1984 (16) E.L.T.-647', does not seem to have taken note of such a practice. We, therefore, feel that had the complete facts been placed before the learned Member, then he too may have come to a different conclusion. It was, no doubt, alleged before him that the Assistant Collector in that case had prescribed a certain procedure and that, impliedly, the appellants could have been held entitled to file refund application with the Superintendent but the learned Member did not accept that argument, having in view a judgment of Calcutta High Court, reported in '1979 E.L.T. J236' (Incheck Tires v. Assistant Collector of Central Excise). We may say, with all respects, that reference to that judgment is not well-placed because the Hon'ble Calcutta High Court was dealing with an entirely different situation; when question of statutory time limit of six months, as laid down by Section 27(1) of the Customs Act, was involved and not such like procedural matters, as to whom the application is to be presented. These matters, in our opinion, could certainly be regulated by a practice, as has been shown in the present case. We therefore, with regrets, have to differ, from the view expressed by our learned Brother in the case pertaining to Hindustan Motors Limited v. Collector Central Excise and Customs, Calcutta (supra).

11. We, therefore, on the facts before us and the material shown, hold that the refund claim was wrongly rejected as being barred by time. We, therefore, allow the appeal and direct that, in case the refund of duties was actually due, the same be given to the appellants, as a consequential relief, of this appeal being allowed.


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