1. These 8 appeals arising out of a common Order-in-Appeal No S 18 to 25/AGM/1981, dated 19-3-1981 passed by the Appellate Collector oertain to the same appellants and involve a common point at issue. They were, therefore, taken up together to-day for decision.
2. The facts of these 8 cases in brief are that Notification No.198/76-Central Excises, dated 16-5-76 granted partial exemption to tea (and some other specified goods). This exemption was in the nature of incentive for higher production In pursuance of this Notification, the Collector of Central Excise, Shillong issued a Trade Notice No. TRCH.40/76, dated 19th October, 1976 in which he prescribed the procedure for availing of this exemption. Paragraph 5 of this Trade Notice which is material is reproduced below :- "5 Declaration of past clearances.-Every manufacturer entitled for such exemption is requested to file a declaration in the annexed form (annexure 'A') with the local Assistant Collector of Central Excise, through his Range Superintendent of Central Excise. After the declaration is approved by the Proper Officer the clearances in excess of base clearances will be entitled for exemption" 3 The appellants promptly submitted their declaration in the prescribed form to their local Assistant Collector on 5-11-1976. This declaration was after some correspondence with the appellants was approved by the Assistant Collector on 7-5-1980 pending approval of the declaration, the appellants went on paying duty at the normal rates. On receipt of the Assistant Collector's approval they submitted refund claims for specific amount representing the excess duty paid by them during the financial years 1976-1979. Their specific claims were submitted by them between 18-6-1980 to 5-11-1980. The Assistant Collector rejected all their refund claims as time-barred under rule 11 read with rule 173J of the Central Excise Rules, 1944. The Appellate Collector upheld the Assistant Collectors Orders. The appellants them filed a Revision Application to the Central Government which on transfer to this Tribunal has been taken up as the Subject appeals.
4 During the hearing before us today, the appellants stated that there was no delay on their part incomplying with the instructions of the Collector and the Assistant Collector. They could not have availed of the exemption on their own or submitted refund claims earlier without waiting for the Assistant Collector's approval to the base period and base year clearance because the Collector's Trade Notice prohibited them from doing so. They relied on Government of India's Order in Revisior in 1982 ELT P 737 passed in a similar case in which the Government had held that by filing his declaration, the assessee has started his claim under the Notification in time.
5. The Departmental representative stated that the exemption notification did not require prior approval of the Assistant Collector and the appellant could have calculated the base period and base year clearance themselves and started availing of the exemption or they could have paid duty at the normal rate provisionally or under protest.
Since they did not do so and that specific refund claims were filled after the prescribed time, their refund claims were correctly rejected as time-barred.
6. We have carefully considered the matter. No doubt that Notification itself did not require .the approval of the Assistant Collector but the trade notice issued by the (Collector did. The Trade Notice stated very categorically that clearances in excess after over base clearances would be entitled for exemption only after the declaration was approved by the Assistant Collector. In such a situation it is too much to expect that any assessee could have started availing of the exemption on his own without the Assistant Collector would have allowed the assessee to do so. Further, Rule 173-B(2) prohibits an assessee from paying duty at the rate lower than the one approved by the Assistant Collector in the classification list. Under rule 173-B(3), the assessee could pay the duty provisionally or under protest only where he disputed the rate of duty approved by the proper officer. There was no such dispute in this case because the matter related to fixation of base period and base year clearances and the said matter was under consideration of the Assistant Collector as per the Collector's executive instructions for which the appellants had given necessary declaration within a few days of the issue of the Collector's Trade Notice. We, therefore, find no substance in the Departmental representative's assertion that the appellants could have availed of the exemption on their own or they could have paid duty provisionally or under protest in this case.
7. Coming to the appellants' plea, we find that their refund claims related to the period from 24-12-1976 onwards. The scheme of Notification No. 198/76-C.E. was that clearances in excess of base year clearances alone were entitled to a partial exemption contained therein. Before any one could avail of such an exemption, the base year clearances had to be determined first. The executive instructions of the Collector contained in the Trade Notice made it obligatory for the assessees to submit prescribed declaration to, and obtain the approval of. the Assistant Collector before availing of the exemption. In such a setting, when an assessee submits the prescribed declaration to the Assistant Collector, it has to be inferred therefrom that the assessee has staked the claim for the benefit of the Notifications. Once the claim has so staked in time (i.e., within the time limit starting from the date of payment of duty as prescribed in rule 11 read with rule 173 during the material time), submission of specific refund claims by the assessee after receipt of approval by the Assistant Collector is not material so far as the limitation aspect is concerned. We, therefore, find force in the appellant plea that their refund claims were not hit by time-bar since they have staked their claims for the benefits of the Notification on 5-11-1976, i.e. before their excess clearances even started on 24-12-1976.
8. Accordingly, we allow all the 8 (eight) appeals with consequential relief to the appellants.