Customs, Excise and Gold Tribunal - Delhi
M/S. Jhay Prestressed Products Ltd. vs C.C.E. Lucknow on 2 February, 2001
Equivalent citations: 2001(131)ELT123(TRI-DEL)
ORDER K.K. Bhatia, Member (T)
1. The appellants, M/s. Jay Prestressed Products Ltd. manufactured Railway Sleepers and supplied them to Indian Railways on payment of duty. Railways had entered into a contract with the appellants in which there is a PVC (Price Variation Clause) for the purpose of future escalation/de-escalation over time to time variation in the price of goods according to weightage linked with the indices of R.B.I. Under the said PVC clause, the appellants had raised some bills for Rs.71,24,707.97 for the supplies made to the Railways and the excise duty of Rs.14,24,941.00 was charged on the same. The Railways had made the payment to the appellants but on subsequent verification, it was found by them that a sum of Rs.32,42,129.50 had been paid in excess due to wrong application of PVC clause. As such, the Railways deducted the said amount of Rs.32,42,129.50 from the payments of the Bills made to the party. The communication of these deductions was made to the appellants on 29.4.97. Consequently, the party filed a refund claim of Central Excise duty of Rs.5,19,572.00 on 7.7.97. Since the claim of the party was not in proper format, the party again filed the claim on 14.11.98. They were issued a Show Cause Notice dt. 7.12.98 asking them to show cause why their refund claim should not be rejected on the grounds of time bar and some other deficiencies. The party replied to the notice contending that the Railways had communicated to them on 29.4.97 with regard to the deduction of the payment for Rs.32,42,130.00 and they filed the refund claim of excise duty of Rs.5,19,572.00 on 25.6.97. As such, it was contended that the application for refund was well in time from the date of cause of action. They further contended that under Section 72 of the Contract Act, if the amount is paid by mistake, it must be re-paid and under the Limitation Act, a suit for recovery can be filed within three years after the mistake came to the knowledge. In their case, they came to know the mistake only on 25.1.97 of the above stated facts and therefore, the Limitation Act will start from this date only.
2. The Asst. Commissioner in his order dt. 29.4.99 on considering the reply of the party however, observed that as per Explanation 'C' appended to Sub-section (3) of clause (ii) (a) of Section 11B, the date of payment of duty is the relevant date for the claim of refund. He has observed that the cause of action in this case has to mean the date of payment of duty and not the deductions from their bills by the Railways as contended by the party. The original authority has rejected the contention of the party for the application of the period of three years for claiming of refund claim under Limitation Act and has observed that in this case the relevant law is Central Excise Act and this law very clearly provides that the refund claim is required to be filed within six months from the relevant date and the relevant date in the instant case means the date of payment of duty. Therefore, he has observed that the party's submissions on record, the Contract Act and Limitation Act do not sustain. Consequently, the Asst. Commissioner rejected the refund claim of the party as barred by limitation of time.
3. The appeal of the party before the Commissioner (Appeals), Ghaziabad did not succeed and the appellate authority vide his Order dt. 31.1.2000 dismissed the appeal of the party upholding the findings of the original authority. The Commissioner (Appeals) in arriving at this decision further relied on the CEGAT decision in the case of M/s. Dawn Apperels Ltd. vs. CCE Mumbai-I - 1996 (87) ELT 83 (T) wherein the refund claim of the appellant was rejected where the duty was paid under mistake of law. The Tribunal in its order observed, that being statutory authority, they had no right to go beyond the statutory provisions of Section 11B.
4. The preset appeal is against the above order of the Commissioner (Appeals). The appellants are not represented but they however have sent a FAX message dt. 2.2.2001 in which reliance is placed on the decision of the Larger Bench of the Tribunal in the case of A. INFRASTRUCTURE LTD. VS. CCE 2000 (117) ELT 583 (L.B). They have stated that this additional ground should be considered while considering their appeal. They have further requested the case to be adjourned for 15 days. I have heard Shri K. Panchatcharam, JDR for the respondents who reiterates the findings arrived at in the decisions of the lower authorities. I have considered the submissions made before me. It is observed from the record that this matter is adjourned twice earlier on the request of the appellants. Even the FAX message containing the request of the appellants for adjournment received today, does not contain any grounds for adjournment. In view of these facts, therefore, I am not inclined to accede to the request of the appellants for adjournment and proceed to decide the appeal on the basis of the facts on record. In this case, it is not disputed that the appellants filed a refund claim for Rs.5,19,572.00 after a period of six months of the date of payment of duty on the goods in respect of which the refund is claimed. The appellants would however like to contend that a sum of Rs.32,42,941.00 was deducted by the Railways from the payment of the bills to be made to them - the communication relating to which was made to them only on 29.4.97. They would like this date to be reckoned for the purpose of computing the six months period for the claim of refund under Section 11B of the Central Excise Act, 1944. They have also relied on the provisions of the Contract Act and Limitation Act for reckonning the limitation for the claim of refund. However, as rightly held by the original as well as the lower appellate authority, the provisions relevant in this case are under the Central Excise Act and being the creature of the statute, the authorities under this Act are bound to follow the limitation provisions provided under this Act. The appellants have relied on the decision of the Larger Bench of the Tribunal in the case of A. INFRASTRUCTURE Ltd. referred to supra. I have perused this decision. In this decision, it is held as follows:
"Therefore, the assessee cannot be allowed exemption from the period of limitation prescribed by Section 11B of the Act for seeking refund of the duty on the simple ground that his contract/purchase order under which he supplied the goods contained variation/escalation clause. The language of Rule 173-S is quite plain, unambiguous and covers all claims for the refund of any duty whether paid under final assessment where the price was already fixed in the contract/purchase order or under the provisional assessment made under Rule 9B of the Rules due to variation clause in the contract/purchase order. The application for the refund of the claim, in both the eventualities has to be made by the assessee within a period of six months as stipulated in Section 11B of the Act".
5. On the facts of the present case, there is no ground that the assessments were requested to be made provisional by the assessee ab initio. There is no force in the contention of the appellants that the assessments should be deemed to be provisional because of the PVC clause in their contract with the Indian Railways. In view of these facts, therefore, there is no ground to interfere with the findings of the lower authorities. The appeal is consequently rejected as without any merit upholding the orders passed by the lower authorities.
(Announced and dictated in the Court)