Skip to content


Tirumalesa Sugars, Palakol Vs. Government of India and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 3919 of 1979
Judge
Reported in1985(21)ELT71(AP)
ActsCentral Excise Rules, 1944 - Rule 11; Central Excise Act, 1944 - Sections 35
AppellantTirumalesa Sugars, Palakol
RespondentGovernment of India and ors.
Appellant AdvocateY. Suryanarayana, Adv.
Respondent AdvocateK. Jagannadha Rao, Standing Counsel for the Central Government
Excerpt:
excise - jurisdiction - section 35 of central excise act, 1944 and rule 11 of central exercise rules, 1944 - application for refund of ex-gratia rejected - appellate collector dismissed appeal against such rejection on ground of delay - rule 11 and section 35 not applicable in claim for refund of ex-gratia - no appeal against such rejection provided under government notification - only remedy at administrative level provided - appellate collector directed to restore application and to dispose by treating it as representation against rejection of claim. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149..........the appellate collector of central excise, madras to restore the appeal of the petitioner and dispose it of afresh in accordance with law. 4. accordingly, the writ petition is allowed and the appellate collector of central excise, madras is directed to restore the appeal preferred by the petitioner on 22-11-1976, treat it as a representation on the administrative side against the order of the assistant collector dated 30-6-1976 and decide in accordance with law. there shall be no order as to costs.
Judgment:

1. M/s. Tirumalesa Sugars, Palakol, applied for an ex-gratia refund of Rs. 16,013.31 Ps. being the differential duty between ad valorem rate of duty paid by them and revised compounded levy rate during the period from 1-3-1975 to 29-4-1975 on Khandasari sugar. The Assistant Collector of Central Excise, Rajahmundry, by his order dated 30-6-1976 rejected the claim for refund. The order of the Assistant Collector, Central Excise was served on Tirumalesa Sugars, the petitioner in this writ petition on 18-8-1976. Against the said order, the petitioner preferred an appeal to the Collector of Central Excise, Madras on 16-11-1976. The appeal was received by the Appellate Collector of Central Excise on 22-11-1976. The Appellate Collector of Central Excise rejected the appeal of the petitioner on the ground that the appeal was barred by time under Section 35 of the Central Excises and Salt Act, 1944. A further revision preferred by the petitioner to the Government of India was also unsuccessful. Hence this writ petition.

2. The only question that arises in this writ petition is whether the rejection of the appeal and the revision by the Appellate Collector of Central Excise and Government of India respectively as time barred under Section 35 of the Central Excises and Salt Act, 1944 is valid.

3. The learned counsel for the petitioner has brought to my notice a trade notice issued by the Collector, Central Excise, which lays down that the time limit laid down for statutory refunds in Rule 11 of the Central Excise Rules in respect of appeals preferred under Section 35 of the Central Excises and Salt Act would not be attracted to the ex-gratia relief granted to Khandsari Sugar Manufacturers for the period when the compound levy scheme was not in operation. This trade notice dated 19-4-1979 appears to have been issued on the basis of the advice given by the Ministry of Law, Government of India, dated 31-1-1979. It is, thus, clear that Section 35 of the Central Excises and Salt Act, 1944 read with Rule 11 of the Central Excise Rules is inapplicable to applications for ex-gratia refunds by Khandsari Sugar Manufacturers. The Law Ministry's advice and the trade notice further clarify that though there will not be any right of appeal as such under Section 35 of the said Act against the decision of the Assistant Collector rejecting the request for refund wholly or partially, representation at the administrative level can, undoubtedly, be entertained by the appropriate authorities. Therefore, in view of this classification issued by the Ministry of Law, Government of India, it would be just and proper to direct the Appellate Collector of Central Excise, Madras to restore the appeal of the petitioner and dispose it of afresh in accordance with law.

4. Accordingly, the writ petition is allowed and the Appellate Collector of Central Excise, Madras is directed to restore the appeal preferred by the petitioner on 22-11-1976, treat it as a representation on the administrative side against the order of the Assistant Collector dated 30-6-1976 and decide in accordance with law. There shall be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //