1. The appellant factory preferred a claim for refund of duty paid on certain uantity of aluminium extruded shapes and sections received in their factory for the purpose of reprocessing under Rule 173L of the Central Excise Rules, 1944. Intimation has been given under D.3 Nos.
8/29-11-80, 16/13-1-81, 25/30-3-81, 6/81-82 dated 15-5-1981. On 19-5-1981 the appellant wrote to the Superintendent of Central Excise, Mettur Range II referring to the operational problems faced in their furnaces and requested a month's time to reprocess and return the materials received to M/s. Lakshmi Machine Works, M/s. Gounder and Co.
and M/s. Kunal Engineering out of the four parties involved from whom goods have been received. In the letter dated 19-6-1981 to the Superintendent, they asked for extension of time by another month to reprocess and return the materials to M/s. Kunal Engineering, Madras and M/s. Breakes India Limited, Madras. On 1-7-1981 they wrote to the Superintendent that the extrusions under D. 3 Nos. 8 and 16 are kept ready for despatch and asked for permission to return the above materials to their customers. In the letter dated 14-7-1981, they indicated that owing to delay in the approval for the return of the material after reprocessing under the 4D. 3s referred to earlier, they were unable to return the materials to the customers and mentioned "in view of the above, we will be riling refund applications for all the above D-3's under Rule 173-L shortly". The formal claim for refund appears to have been filed and received by the Assistant Collector six months after the date of return of the rejected material in the appellant's factory. Accordingly, the Assistant Collector by his orders No. V/27/18/317/ 81-GL.2 and V/27/18/318/81-GL.2 both dated 3-3-1982 rejected the claims as barred by limitation under Section 1 IB of the Central Excises and Salt Act, 1944. Considering an appeal against these two orders, the Appellate Collector of Central Excise, Madras, held that in terms of Rule 173L(3) refund shall not be paid unless an account under Sub-rule (2) has been rendered to the satisfaction of the Collector within six months of the return of the goods into the factory. Hence, he rejected the two appeals. A revision application filed against this order of the Appellate Collector stands transferred to the Tribunal in terms of Section 35P of the Act.
2. Before me the advocate for the appellant urged that Rule 173L is a self contained provision which requires the Collector to make a refund when the conditions set out therein are satisfied. He urged that Section 11B will have no relevance to a situation when goods are returned to the factory for reprocessing-a situation excepted by Sub-section (4) of Section 11B. Hence, the time bar referred to under Section 11B will not be applicable and the lack of the application within six months from the date of return of the goods to the factory is not relevant, as the refund has to be made by the department on its own.
3. SDR, on the other hand, referred to Section 11B(1) which provides that when any person claiming refund of duty should make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date. In Explanation to the Section 'relevant date' has been clarified. Explanation B(b) reads :- "In the case of goods returned, for being remade refined, reconditioned, or Subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid ;" He urged that because of the specific reference to goods returned to the factory for being remade etc. in explaining the 'relevant date' the need for making an application under Section 11B(1) will apply to cases of return of goods to the factory. The exception in Section 11B(4) would not cover such a condition. At this stage, the advocate wanted me to consider a communication dated 14-7-1981 itself as a claim for a refund. To this, SDR countered by observing that the last paragraph of the letter reads as, "We will be filing refund applications for all the above D.3s under Rule 173L shortly." Hence that letter of July 1981 cannot by itself be treated as an application for refund.
4. I have considered the points urged by both sides. Though the Appellate Collector has not considered the position under Section 1 IB but referred to rendering of an account within six months in terms of Rule 173L, the Assistant Collector has rejected the claim under Section 11B itself. I agree with the SDR that the saving under Section 11B(4) cannot cover a situation like the present one in which the goods are returned to the factory for manufacture or for being remade; if that was the intention of that Sub-section, there would be no need to refer particularly to the situation of returned goods for remaking to the factory while defining the 'relevant date'. In fact, the wording of Explanation B(b) is almost identical with the latter part of the wording of Rule 173L(1). Thus, one has to hold that in a situation like the present one is indeed covered by the provisions of Section 1 IB.The formal claim for refund was received by the Assistant Collector only after the expiry of six months from the date of return of the goods. I have also considered if the letter dated 14-7-1981 could be considered as a claim for refund in respect of the four D.3s referred to therein. I am afraid it cannot be so considered for two reasons for one thing : (a) it ends by saying that the claim for refund would be filed later; for another (b) it is addressed to the Superintendent of Central Excise and not to the Assistant Collector who is the authority to whom a claim for refund has to be made.