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Poulose and Matthen Vs. Collector of C. Ex. - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1989)(43)ELT424TriDel
AppellantPoulose and Matthen
RespondentCollector of C. Ex.
Excerpt:
.....18-7-1981 rejecting the appellants' claim for refund as time-barred under rule 11 of the central excise rules, 1944. it was originally filed as a revision application before the central government and has been transferred to this tribunal in terms of section 35-p of the central excises & salt act for disposal as if it were an appeal filed before it.2. the appellant is a company manufacturing liquid carbon dioxide at its fac tory at udyogamandal and quilon in kerala state. the appellants claimed a refund of rs. 49,565.72, representing 25% excise duty relief under notification no. 198/76 dated 16-6-1976 in respect of the clearances between 12-12-1977 to 31-3-1978. the refund claim of the appellant was rejected by the original authority, namely, the assistant collector of central.....
Judgment:
1. This appeal is directed against the order of the Appellate Collector of Central Excise, Madras dated 17-2-1982 confirming the order of the Assistant Collector of Central Excise, Ernakulam dated 18-7-1981 rejecting the appellants' claim for refund as time-barred under Rule 11 of the Central Excise Rules, 1944. It was originally filed as a Revision Application before the Central Government and has been transferred to this Tribunal in terms of Section 35-P of the Central Excises & Salt Act for disposal as if it were an appeal filed before it.

2. The appellant is a company manufacturing liquid carbon dioxide at its fac tory at Udyogamandal and Quilon in Kerala State. The appellants claimed a refund of Rs. 49,565.72, representing 25% excise duty relief under notification No. 198/76 dated 16-6-1976 in respect of the clearances between 12-12-1977 to 31-3-1978. The refund claim of the appellant was rejected by the original authority, namely, the Assistant Collector of Central Excise, Ernakulam under Rule 11 of the Central Excise Rules, 1944 holding that the same was made only on 6-6-1980. On appeal, this order was confirmed by the Appellate Collector of Central Excise under the impugned order now appealed against.

3. The learned Counsel Mr. Haksar, appearing for the appellants, submitted that even at the time of filing the classification list for the financial year 1977-78 on 15-2-1977, the appeals claimed the benefit of notification No. 198/76 referred to supra and sought the approval of the Department from 16-3-1977 and as the same was not acceded to by the authorities on the ground that the appellants had not filed the required certificate from the Assistant Collector, Central Excise, Trivandrum Division in whose jurisdiction the appellants' factory is functioning, the appellant filed a revised classification list as required by the Superintendent under protest on 9-5-1977. It was further urged that the numerous letters addressed by the appellants to the various officers in the Department and dated 20-6-1978, 3-10-1978, 20-1-1979 and 18-6-1979 claiming the benefit of notification No. 198/76 dated 16-6-1976 and consequent refund thereon, would constitute either an application for refund or sufficient protest for the purposes of Rule 11 of the Central Excise Rules, 1944. The learned Counsel finally submitted that the Department having not issued the necessary certificate required for claiming refund in spite of repeated letters and reminders from the appellant cannot be allowed to take advantage of its own laches to the detriment of the appellant for denying him the refund lawfully due to him.

4. The learned Sr. Departmental Representative submitted that the appellants claiming duty relief in terms of notification No. 198/76 in respect of clearance between 20-12-1977 to 30-1-1978 should have filed an application for refund to the Assistant Collector, Central Excise before the expiry of six months from the date of payment of duty and in the instant case the various letters referred to and relied upon by the appellant would neither constitute an application for refund within the meaning of Rule 11 nor a protest thereunder. The Senior Departmental Representative further contended that the Rules relating to limitation will have to be construed strictly and considerations of equity would have no relevance or bearing on the same. In regard to the plea of the ap pellant about the alleged laches on the part of the department officials in not favouring the appellant with the necessary certificate to enable him to claim refund in terms of the notification referred to supra, the learned Senior Departmental Representative sub mitted that filing of certificate is merely procedural in nature and not a condition prece dent or the exercise of the substantive right of claiming refund by the appellant under Rule 11 and, therefore, the period of limitation will start running from the date of pay ment of the duty.

5. We have carefully considered the submissions by the parties herein.

Our at tention was drawn during the course of arguments to the letter addressed by the appel lant dated 20-6-1978 to the Superintendent, Central Excise, Quilon Range and marking a copy to the Assistant Collector wherein the appellant has clearly stated about his eligibility for duty relief from December, 1977 as per notification No.198/76, dated 16-6-1976 and claiming relief on 1,62,372.073 kgs. of carbon dioxide cleared by the ap pellant from their factory. It should be noted in this context that a copy of this letter has been marked and sent to the Assistant Collector. On a careful scrutiny of the contents of this letter, a copy of which has also been sent to the Assistant Collector, we are satis fied that in substance the appellant has clearly brought to the notice of the Assistant Collector his claim for refund by an application. If this application is construed in law as an application for refund in terms of Rule 11 of the Central Excise Rules, 1944, it is con ceded by the learned Senior Departmental Representative that the rejection of the appellants' refund claim under the impugned order is not legally sustainable. On a con sideration of the letter of the appellant dated 20-6-1978, we are convinced that in sub stance it is an application seeking refund and inasmuch as a copy of the same has been sent to the Assistant Collector, the appellant should be deemed to have made an applica tion for refund as per law in terms of Rule 11 of the Central Excise Rules, 1944. It was brought to our notice at this juncture that even this application of the appellant dated 20-6-1978 was not sent to the proper Assistant Collector having jurisdiction over the area and, therefore, would not merit any consideration. It is a settled proposition of law that if an application is filed before an officer who does not have territorial jurisdiction, the application would not be ab initio either void or non est. Since, in our, view, a copy of the application of the appellant dated 20-6-1978 referred to supra in substance would con stitute a refund application within the meaning of Rule 11 of the Central Excise Rules, 1944, we hold that the rejection of the appellants' refund claim under the impugned order is not legally sustainable. In this view of the matter we set aside the impugned order ap pealed against and allow this appeal. Since we have disposed of the appeal, on the ground that the copy of the appellant's letter dated 20-6-1978, to the Assistant Collector con stitute a valid refund claim in law, we do not feel called upon to traverse and consider the other submissions of the learned Counsel for the appellant


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