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Assam Industrial Corporation Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1993)(66)ELT688TriDel
AppellantAssam Industrial Corporation
RespondentCollector of Central Excise
Excerpt:
.....was in respect of the period 19-4-1979 to 1-8-1979 and the grounds advanced in support of the refund application were that the appellants were entitled to the exemption under notification no. 71/78, dated 1-3-1978 and that the duty payable on rs. 5,00,000/- at the rate of 10% amounting to rs. 50,000/- was to be refunded.3. the appellate collector rejected the claim holding that the appellants' letter dated 26-9-1979 to the assistant collector of central excise, gauhati, cannot be treated as an application for refund of duty and that in the circumstances, the claim for refund was time-barred under rule 11 of the central excise rules, 1944.4. before us and in the appeal, the appellants argued that while they did not file an application for refund within six months from the date of.....
Judgment:
1. This is a Revision Application (hereinafter called "Appeal") filed before the Central Government which under Section 35P of the Central Excises and Salt Act, 1944, stands transferred to this Tribunal to be disposed of as if it were an appeal presented before the Tribunal.

2. In this matter, the appellants applied for refund of Rs. 50,000/- on 27-2-1980. This claim was received in the Assistant Collector's office on 29-2-1980. The refund claim was in respect of the period 19-4-1979 to 1-8-1979 and the grounds advanced in support of the refund application were that the appellants were entitled to the exemption under Notification No. 71/78, dated 1-3-1978 and that the duty payable on Rs. 5,00,000/- at the rate of 10% amounting to Rs. 50,000/- was to be refunded.

3. The Appellate Collector rejected the claim holding that the appellants' letter dated 26-9-1979 to the Assistant Collector of Central Excise, Gauhati, cannot be treated as an application for refund of duty and that in the circumstances, the claim for refund was time-barred under Rule 11 of the Central Excise Rules, 1944.

4. Before us and in the appeal, the appellants argued that while they did not file an application for refund within six months from the date of payment of duty, the date of payment of duty is not the relevant date for purposes of computation of such time limit. They submitted that the relevant date is the date of assessment of RT 12 and in support of their arguments cited a Government of India decision reported in 1977 (1) E.L.T. (J 127) - Standard Tin Works. They further argued that they wrote a letter on 26-9-1979 stating that they intended to apply for refund and asking for a specimen form of application for refund. Their submission was that in the circumstances the date 26-9-1979 should be taken as the date of application.

5. The learned representative for the department, Shri Lakshmikumaran, opposing the arguments submitted that the letter dated 26-9-1979 was not a substantial request for refund. This was only a request for a specimen application form and nothing more. He further submitted that the Government of India orders cited by the appellants were applicable only to the particular matter and the wording of Rule 11 is very clear to allow any doubt about the relevant date. This rule, he submitted, clearly mentions the date of payment of duty as the date and the finalisation of RT 12 is only a matter of assessment, while the debiting of the PLA is the Act of payment of duty. He also submitted that the form or an application for refund was circulated by a Trade Notice and the appellants were free to make an application even on a plain paper which they did not do. He cited a judgment of the Kerala High Court W.A. No. 199/78 against Judgment O.P. No. 124175 -1978 (2) E.L.T. (J 705) - T.T. Pylunny Royal Smiths v. Union of India in support of his argument that debiting the PLA is the date for computation of time limit for purposes of Rule 11 of Central Excise Rules, 1944.

6. Replying, the learned Consultant submitted that Trade Notices were not available to individual licencees including the appellants, and that the Government of India orders were quite clear.

8. It is the admitted position in this case that the actual application for the refund was made on 29-2-1980 asking refund of duty paid during the period 19-4-1979 to 1-8-1979. We have considered the arguments of the appellants that the date on which they made a request for a specimen form should be taken as the date for refund application. On a perusal of this letter, it is seen that by no stretch of imagination can this letter be considered as an application for refund. There is no mention of the period, the amount or anything like a formal request for refund. It is only a request for a specimen form and has to be treated merely as such. We, therefore, reject the request that this letter be considered as an application for refund.

9. We have also considered the submissions that the Government of India Order cited by the appellants should be taken as law. We do not consider that this order gave the meaning of Rule 11 as it stood at the material time which clearly mentions that an application for refund should be made within six months from the date of payment of duty. We agree with the submission of the learned representative for the department that it is the debiting of the PLA that constitutes the act of payment of duty and that assessment of RT 12 amounts only to levy and assessment and nothing more. We keep in mind that the Kerala High Court judgment cited by the learned representative is quite clear. In that matter, their Lordships held that even when the exemption related to the value of production in a financial year, that the crucial date for computation of limitation was the date of payment of duty. In the instant matter, the exemption related to the value of clearances in the past year and was known to the appellants from the first day of the financial year following the same. Therefore, we respectfully agree with the views expressed in the Kerala High Court judgment cited above.

10. In the circumstances, we find no merit in the appeal and dismiss the same.


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