1. Appeal under" Section 35B of the Central Excises and Salt Act, 1944 praying that in the circumstances stated therein, the Tribunal will be pleased to order refund of Central Excise duty amounting to Rs. 1,01,810.94.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri S. Venkataraman, Advocate for the appellants and upon hearing the arguments of Shri S. K. Choudhury, Senior Departmental Representative for the respondent, the Tribunal makes the following : 3. The Assistant Collector of Central Excise, Hyderabed V Division rejected a refund claim preferred under Rule 173L of the Central Excise Rules 1944 in respect of 10,39,000 damaged cigarettes of Charminar Kings and Gold Filter Kings loss, brought by the appellants into their factory on 12-2-1979 vide his order C. No. V/4-1I/18/60/79-M.P.I. dated 30-4-1982. In doing so, he observed that proof of return of the said damaged goods by six parties in question was called for but was not produced. He also observed that the Form V Register did not show the details of commencement of processing, nature of processing, date of completion of processing, quantity obtained after processing and loss, if any etc. When the matter was agitated in appeal, the Collector of Central Excise (Appeals), Madras, vide his C. No. V/4-II/7/82 dated 2-11-1982 noted that accounting has to be to the satisfaction of the Asstt. Collector; this not having been done, the order of the Assistant Collector was correct in law.
4. Before us, the advocate for the appellants points out that intimation of receipt of the goods was in fact given in the prescribed form. In the photostat copies of the D. 3 Form (Sl. Nos. 1, 2 and 3 dated 12-2-1979), exhibited in Court, we observe that the Superintendent of Central Excise has observed as follows :- "Verified, 'the consignment relating to 1, 2 and 3 of these D-3s Total 10,39,000 cig. relates to 17 G.P.Is.
It is seen that in the D. 3 the number and date of gate passes under which the cigarettes had been cleared after payment of duty have been exhibited in detail. To a query from the Bench, it was clarified that cartons containing cigarettes bear a serial number; this serial number enables one to relate it to the particular gate pass under which it was cleared on payment of duty. The endorsement of the Superintendent should ordinarily to be held to mean that whatever check he had to exercise in this regard has been done and the details as given in the D. 3 form, to the extent verifiable and needed to be verified has been found correct.
5. The Senior Departmental Representative made a point that satisfaction is that of the Asstt. Collector; verification by the Superintendent does not prevent the Assistant Collector from seeking satisfaction on his own independently. Though as a theoretical proposition this may seem right, it does sound strange that a certificate of a Superintendent authorised to do a verification, naturally on behalf of the Department-it is not disputed that he did any work unauthorisedly can be ignored and evidence, whether fresh or existing, will have to be submitted to another authority under whom he was working. In the absence of any suggestion or claim that the verification of the Superintendent is vitiated in one way or the other, we would accept that identification of the returned goods with reference to the entries in the D. 3 as exhibited in the document, had in fact been carried out.
6. The other point taken up in the order of the Asstt. Collector is that certain details of processing are not found in Form V. Form V is an account prescribed by the Department itself. If it does not contain columns relating to data which is now asked for and is not available, the appellants cannot be blamed for the non-availability. Whoever designed the form should presume to know what he was seeking to get.
Thus, this objection of the Assistant Collector is not maintainable.
7. In the result, we allow the appeal, subject to the Assistant Collector satisfying himself from the Form V register, now exhibited before us as being one maintained in the normal course of business and contains information that it ought to contain under each column occurring in it and order consequential refund of duty involved.