1. Dunlop India Ltd., Calcutta has tiled an appeal being aggrieved from the Order-in-Appeal No. 94/WB/82, dated 17-4-1982 passed by the Appellate Collector of Customs & Central Excise, Calcutta. The appellants had filed a Revision application to the Additional Secretary to the Government of India, Ministry of Finance, New Delhi and had dispatched the same per Registered A.D. post vide the appellant's reference No. TKR/2781, dated 12th November, 1982 and the said Revision Application was received in the Ministry vide R 1603, dated 17th November, 1982/6296, dated 22nd November, 1982. Thus the appellants had filed a Revision petition after coming into existence of the Tribunal through mistaken belief of law. The said revision petition was transferred by the Ministry to this Tribunal. The Revision petition filed before the Ministry was in the form of a letter and not on the prescribed form. The appellants have filed an appeal in the Registry today in Form No. EA 3 as well as an application for condonation of delay and in the application they have submitted that the appeal in Form No. EA 3 in quadruplicate duly filled in has been filed by way of regularisation of the prescribed formalities. The appellants has stated in the application for condonation of delay that they were not aware of the Customs, Excise & Gold (Control) Appellate Tribunal (Procedure) Rules, 1982.
2. Shri Indra Nath Basu, Taxation Officer of the appellant company has appeared and has submitted that the Revision Petition filed by the appellants in the Ministry was within time and the same has been transferred to the Tribunal and after receiving the information from the Tribunal the court fee was duly paid at Rs. 200/- and there was no wilful delay on the part of the appellants in any way. The learned authorised representative has further submitted that the memorandum of appeal in Form No. EA 3 has been filed to regularise the mistake of the original appeal and the memorandum of appeal in the prescribed form has to be read with the revision petition filed to the Ministry. He has pleaded that if at all the appellant's revision petition is not accepted then the appellant's appeal filed in Form No. EA 3 today i.e.
14th day of December, 1983 should be considered to be in time and within limitation and the delay may kindly be condoned. He has pleaded innoncence of law. On merits, Shri Basu has pleaded that the appellant company, Dunlop India Ltd., is a manufacturer of tyres and tubes and had preferred a refund claim amounting to Rs. 1,329.56 p. for Central Excise duty paid on 500 pcs of Moped tubes supplied to M/s. S & P Engineering Products Ltd., who are manufacturers of Mopeds. He has further pleaded that the said consignment of 500 pcs. of Moped tubes were removed from the factory under A.R. 3A No. 843/ Dunlop/78 dated 17-2-1978 for M/s. S & P Engineering Products Ltd., but due to some difficulties the said materials were delivered to their Calcutta depot which were subsequently sent to the customers under their invoice No.1/50292 dated 1st June, 1978 without using A.R. 3A. He has further submitted that since M/s. S & P Engineering Products Ltd., had paid the duty leviable on those goods under T.R. 6 challans against the said invoice, the appellants have made a refund claim for the amount of duty debited in their P.L.A. on 27th August, 1978. He has also submitted that the appellants had not received back A.R. 3A and G.P. 2 and as a precaution the appellants had paid the duty and subsequently when they learnt that the duty has already been paid by M/s. S & P Engineering Products Ltd., the appellants had filed a refund claim on the 23rd June, 1979, whereas the duty was paid on 27th August, 1978 at Rs. 1,329.26 p. He has also submitted that the assessments were provisional and the claim is not hit by limitation as the same was submitted within one year. He has placed reliance on Rule 11 of the Central Excise Rules, 1944 and has pleaded that since the duty was paid provisionally under this rule, the period of six months have to be computed on which the duty adjusted after final determination of the value or the rate of duty as the case may be. He has further pleaded that the duty was paid twice and the appellants had been following Chapter X Procedure and the goods had moved after the execution of bond by the consignee and the appellants had paid the excise duty as a precaution vide P.L.A. A/c.
No. 621 at Rs. 1266.25 (4-) Special duty Rs. 63.31. He has submitted that M/s. S & P Engineering Products Ltd., Narendrapur, 24 Parganas had paid the sum of Rs. 1246.38 as per T.R. 6 Challan No. 11. In view of the above arguments, the authorised representative has pleaded that since it was a provisional assessment and the limitation of six months under Rule 10 does not apply in the case of appellants, the appellants' appeal should be accepted.
3. In reply, Shri A.K. Saha, the learned S.D.R. has relied on the order passed by the Assistant Collector as well as the Collector (Appeals).
He has referred to the judgment in the case of Hindustan Steel Ltd. v.Union of India reported in 1979 E.L.T. (J 33), and submitted that in view of this judgment it is the duty of the assessee to satisfy the Excise Authorities that he is entitled to set off the refund and the appellants have not been able to discharge the onus that the duty has been paid by the consignees. A photostate copy of the T.R. 6 which has not been certified by the Central Excise Authority is not sufficient enough to prove that the consignee had paid the amount and even there could not be a correlation of the amount and the amount paid as per T.R. 6 is Rs. 1246.38 whereas the amount as per appellants' P.L.A.Account vide Serial No. 621 of 27th August, 1978 is Rs. 1266.25. He has also pleaded that the appellants, for the first time, had taken the plea of provisional assessment before the Collector (Appeals) as well as before this Court and in the P.L.A. Account the Serial No. 621 are payment against A.R. 3A 843/Dunlop/78/7-2-78. He has submitted that no words 'provisional assessment' or 'provisional' had been written anywhere and as such it was not a provisional payment. The appellants had paid the amount as soon as he discovered the shortage of the goods.
He has submitted that in view of the provisions of Rule 173N the appellants have to re-warehouse the goods under Rule 156B of the Central Excise Rules, 1944. He has pleaded that in the instant case the re-warehoused goods were not received back by the consignor within 90 days from the date of removal of the goods and as such the consignor had paid the duty correctly after debiting in his P.L. Account. He has referred to the proviso to Rule 156B wherein it has been provided that for the claim of refund, the appellants have to satisfy two conditions-firstly, the payment of duty and secondly, the proof of re-warehousing. The respondent has filed a copy of letter dated 9th May, 1979 written by M/s. S & P Engineering Products Ltd., which is the part of the record wherein the consignor has admitted that they had not re-warehoused the tubes and as such there is no question of A.R, 3A or G.P. In the alternative Shri Saha has pleaded that the payment made by the appellants was not provisional and as such the appellants are not entitled to the benefit of explanation to Rule 11 of the Central Excise Rules, 1944.
4. After hearing both the sides and going through the facts and circumstances of the case, I hold that the appellant was prevented by sufficient cause in the late filing of the appeal as the appellant had filed a Revision petition within the statutory period of time in a wrong quarter and that Revision petition was transferred by the Ministry to this Tribunal. Thus filing of an appeal on the proper form is rectification of the mistake. Hence the delay in the filing of the appeal is condoned and I hold that the appellant was prevented by sufficient cause in not filing the appeal within the time in proper form. The bona fide of the appellant should not be doubted. There are judicial pronouncements on the issue to the effect that the provisions of Section 14 of the Limitation Act, 1963 do not apply to appeals, still the circumstances mentioned in that section (viz., proceeding in a wrong court through bona fide mistake) may be considered as a sufficient cause so that the time during which an appeal has been pending in a wr6ng court may be excluded and the court may excuse the delay-Balwant v. Gumani 5 All. 591 ; Kamuruddin v. Bishnupriya PC 276 ; Anadi Ram v. Mt. Chadun AIR 1956 Ass. 63 ; State v. Man Mohan Lal AIR 1966 Or. 219 (Not cited by any of the parties). I also find that the copy of the A.R. 3A does not contain the certificate of re-warehousing by the consignee and the letter dated 29th May, 1979 of the consignor clearly states that the consignee had not re-warehoused the goods and in the absence of a certificate of re-warehousing by the consignee, the appellants cannot get the refund under Rule 156B of Central Excise Rules, 1944 which is reproduced as under : (1) In case the certificate of re-warehousing is not received back by the consignor within 90 days of the removal of the goods or such extended period as the Collector may allow to an assessee or class of assessees the consignor shall pay the duty leviable on the consignment by a debit in his account-current: Provided that where such duty has been .paid and proof of re-warehousing is produced by the consignor to the satisfaction of the proper officer, such consignor shall, on making an application to the proper officer, be entitled to a refund of the duty so paid.
(2) If the original application endorsed with the re-warehousing certificate is not received by the officer-in-charge of the factory or warehouse of removal or if received it shows a shortage not explained to the satisfaction of the proper officer, the consignor shall, on demand by the proper officer, pay the duty leviable on such goods within ten days of the notice of demand and if the duty is not so paid, he shall not be permitted to make fresh removals of any warehoused goods, from his factory or warehouse to another warehouse until the duty is paid or until the certificate of re-warehousing is presented to the officer-in-charge of the factory or warehouse of removal to his satisfaction." Thus, Rule 156B requires that before an assessee is entitled to refund has to satify that the duty has been paid and proof of re-warehousing is produced by the consignor to the satisfaction of the proper officer.
In this case, there is no re-warehousing and even the payment of excise duty by the consignee as per photostat copy of T.R. 6 is not a sufficient proof that the payment has been made and the appellants have not been able to discharge the onus as per judgment of Hindustan Steel Ltd. v. Union of India reported in 1979 E.L.T. (J 33) (M.P.). In view of the above discussions, I hereby uphold the order passed by the lower authorities. Since there is no A.R. 3A certificate the question of limitation for making a refund claim is not of any importance. I confirm the order passed by the Collector (Appeals). The Appeal is dismissed.