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Kothari Plantations and Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1986)(6)LC510Tri(Delhi)
AppellantKothari Plantations and
RespondentCollector of Central Excise
Excerpt:
.....officer on an application by the party and it is only after such determination that any refund of excise duty could be claimed, it is the date of the application for fixation of the basic figures that would be relevant as the date on which a claim for refund could be said to have been staked.it had been held that therefore though the actual refund applications may be beyond the period of limitation as calculated from the date of payment of duty the refund applications will have to be disposed of not with reference to the said date of actual application for refund but with reference to the date of the application for fixation of base figures. no doubt shri sachar contends that the applications dated 21-10-1976 and 5-11-1976 were not for refund but were for consideration of, the.....
Judgment:
1. Both the appeals are by M/s. Kothari Plantations and Industries Limited, Calcutta, the two appeals relating to different Tea Estates owned by them. Since identical issue arises for determination in both appeals they were, with the consent of the parties, heard together.

2. With reference to the clearances from the two Tea Estates (Dooria Tea Estate and Gorunga Tea Estate) the appellants claimed benefit of concessional rate of duty under Notification No. 161/75-C.E., dated 1-7-1975, as amended by Notification No. 133/76-C.E., dated 26-3-1976.

The applications for determination of the eligibility for the concessional rates, in terms of the provisions of the notification, had been made on 21-10-1976 and 5-11-1976 respectively and orders of the Assistant Collector concerned in this regard were passed on 6-4-1977 and 19-3-1982 respectively. Thereafter applications for refund were made on 21-4-1977 and 20-5-1982 respectively. Both applications were rejected by the respective Assistant Collectors on the basis of bar of limitation and the said orders were upheld on appeal also. Against the order of the Appellate Collector dated 30-10-1980 a revision petition had been preferred to the Government which, on transfer, is now being heard as an Appeal before this Tribunal (Appeal No. 694/81). Against the order dated 28-1-1984 of the Collector of Central Excise (Appeals), the appellants had preferred Excise Appeal No. 771/84.

3. We have heard Shri N. Khaitan, Advocate for the appellants and Shri K.C. Sachar, Junior Departmental Representative for the respondent Collector.

4. The facts earlier stated as to the dates of application etc., are not in dispute. The appellants contend that with reference to those dates the order of rejection of the refund claims is not legal and rely upon certain decisions of this Tribunal in support of the same. They are-New Jatiaga Valley Tea Estates Limited, Calcutta v. Collector of Central Excise, ShillongNeelamalai Tea/Coffee Estates and Industries Limited v. Collector of Central Excise, Madras 3. Order No. 558/83-D, dated 2-9-1983 in Excise Appeal No. 318/80-D (M/s. Kothari Plantations and Industries Limited v. Collector of Central Excise, Shillong).

It was pointed out that though these three judgments did not relate to the notifications now in question the principles laid down therein governed the decision in the present cases also. The ratio of those decisions is that when determination of eligibility for concessional rate of duty is to be made by the concerned Central Excise Officer on an application by the party and it is only after such determination that any refund of excise duty could be claimed, it is the date of the application for fixation of the basic figures that would be relevant as the date on which a claim for refund could be said to have been staked.

It had been held that therefore though the actual refund applications may be beyond the period of limitation as calculated from the date of payment of duty the refund applications will have to be disposed of not with reference to the said date of actual application for refund but with reference to the date of the application for fixation of base figures. No doubt Shri Sachar contends that the applications dated 21-10-1976 and 5-11-1976 were not for refund but were for consideration of, the eligibility to pay duty at concessional rate. He therefore contends that these applications having been for permission to pay duty at concessional rates and not being applications for refund of duty, the abovesaid decisions would not apply to the facts of the present case. He contends that the dismissal of the applications for refund was legal as admittedly the applications were beyond the period of limitation calculated from the dates of payment of duty.

5. We have carefully considered the submissions of both sides. We are satisfied that the submission for the appellants about the applicability of the ratio in the three earlier decisions is correct and that the same ratio will have to be applied to the present appeals also. The appellants had been paying duty at the regular rate, as they were bound to, till their eligibility for payment at concessional rate could be determined by the concerned Assistant Collector. It is only on such determination that their right to claim refund would itself arise.

It is in view of exactly similar circumstances that in the earlier decisions this Tribunal had held that it was the date of the receipt of the application for fixation of base figures that would be the relevant date for purposes of limitation though the actual application for refund may be filed much later, as they must necessarily be filed after determination of the base figures by the concerned Assistant Collector.

We therefore hold that in the present appeals also it will be the date of receipt in the concerned Assistant Collector's office of the appellants letters dated 21-10-1976 and 5-11-1976 that would be relevant on the question of limitation with reference to the refund applications subsequently made. The period of limitation at the relevant time was one year. We therefore hold that in respect of both refund applications the same will have to be allowed for the period of one year preceding the dates on which the applications dated 21-10-1976 and 5-11-1976 had been respectively received in the office of the concerned Assistant Collector. The periods for which refund had been claimed in these two appeals are 17-7-1975 to 2-3-1976 and 1-7-1975 to 31-3-1977 respectively. The two refund applications for that period will have to be therefore disposed of by the Assistant Collector concerned in the light of the findings above.

6. Accordingly, both these appeals are allowed and the orders of the lower authorities are set aside. The matters are remitted to the Assistant Collectors concerned for grant of refund for the relevant period in terms of the findings earlier in this order. As the refunds relate to a period over seven years earlier it is directed that the orders regarding refund should be passed within three months after receipt of the records in the office of the concerned Assistant Collectors.


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