1. This appeal arises out of and is directed against order-in-Appeal No. A-1277/BI-253/82 dt. 2.9.82 passed by the Collector, Central Excise (Appeals), Bombay by which he dismissed the appellant's appeal and confirmed the order-in-original passed by the Asstt. Collector of Central Excise} Bombay who rejected the appellant's claim of refund of Rs. 3232.93 paise said to be the excess duty paid by the appellants during the period from 1.8.76 to 16.11.78.
2. The facts necessary for disposal of this appeal are few and simple and undisputed. The appellants storage tank No. 202 was due for recalibration on 31.7.78. Due to Unavoidable circumstances the appellants could not get it recalibrated by that date, and they sought extension of time originally till 31.10.78 and subsequently till 30.11.78. Their request for extension appeared to have been granted subject to the condition that difference in duty if any, on the basis of the revised calibration charge should be paid. While giving such an undertaking the appellants incorporated a clause which reads : 'However, the above undertaking to pay the differential duty as stated to Central Excise is subject to our receiving refund of any excise duty found to be excess paid to Central Excise as per old calibration table when compared to the duty payable as ascertained by application of new calibration table effective August 1,1978.
3. After recalibration the appellants filed a refund claim for Rs. 3232.93 paise on 25.1.79 on the ground that they paid excess duty during the period from 1.8.78 to 16.11.78 in respect of the petroleum products cleared from Tank No. 202 consequent upon recalibration of the tank in November, 1978. The Asstt. Collector before whom this claim was made rejected the claim holding that the appellants have failed to recalibrate the tank on the due date and that the appellants had already recovered the 'duty Mm the customers as per the old calibration and that the undertaking of the extended period was not binding on the department. The appellants appeal to the Collector, Central Excise (Appeals) was also rejected, firstly on the ground that the duty was paid on the basis of the calibration charge that was in existence and therefore, the question of excess payment does not arise, and secondly, on the ground that the undertaking did not provide for granting refund and the extension was given for the convenience of the appellant.
4. Feeling aggrieved by the order of the Collector (Appeals) as stated earlier the appellants have filed the second appeal.
5. For the appellants, Shri G.M. Badekar, Tax-Manager, contended that while granting extension for recalibration the Central Excise department had obtained an undertaking to claim the excess duty in the event of there being any difference of variation in the calibration and while giving such undertaking the appellants have also stipulated to claim refund if excess has been paid and in the said circumstances the Asstt. Collector and the Collector (Appeals) have not justified m rejecting the refund claim in respect of the excess duty paid. The second contention was that under Section 11-B of the Central Excise Act appellants are entitled for refund of the excise duty paid, and therefore he prayed for setting aside the orders of the authorities appeal and could direct the authorities to order refund of the amount claimed in the appeal.
6. Shri Pattekar, J.D.R. however contended that the claim of the appellant is untenable and the orders passed by the Asstt. Collector and the Collector may be confirmed.
7. We have carefully gone through the records of the case and considered its submissions made by Shri Badekar and Shri Pattekar: In out opinion there is no substance in this appeal.; It is not disputed that till the tank in question was recalibrated the payment of duty was as per the old calibration. It is not the case of the appellant that recalibration cams into effect with retrospective date. If the recalibration has no retrospective effect there is no scope to claim any refund on the basis of the difference between the. old calibration and the new calibration.' The learned Collector is wholly correct in holding that there was no commitment on the part of the department to grant refund subsequent to the recalibration. The learned Collector is also justified in taking the view that there is no scope to refund since the duty was paid correctly at the relevant time. The very basis of the claim of the appellant has no foundation, and therefore, the Collector is totally justified in rejecting the claim.