Customs, Excise and Gold Tribunal - Delhi
Precision Drilling Equipments (I) Ltd. vs Commr. Of C. Ex. on 4 September, 1996
Equivalent citations: 1997(93)ELT448(TRI-DEL)
ORDER K.S. Venkataramani, Member (T)
1. This appeal is directed against the order dated 6-6-1991 passed by the Commissioner of Central Excise, (Appeals), Ghaziabad by which he has upheld the order of the Assistant Commissioner of Central Excise, Noida rejecting the refund claim of the appellant herein as time barred. The appellant filed a refund claim for Rs. 7,93,333.20 on 6-9-1988 for the duty paid during 9-5-1985 to 18-10-1985 on the ground that the goods were exempted from duty as per Deemed Export Notification 211/85, dated 24-9-1985. Since no duty was payable they claimed refund thereof which had been paid erroneously. Show cause notice was issued on 26-9-1988 asking them to show cause why their refund claim should not be rejected as it had been filed beyond six months time limit prescribed under Section 11B of the Central Excises and Salt Act, 1944 because the duty was paid till 9-5-1985 to 18-10-1985 whereas the refund claim was filed on 6-9-1988 after a period of nearly 3 years. In the show cause notice it was alleged that the appellant did not follow the procedure for payment of duty under protest in terms of Rules 233B of the Central Excise Rules. The appellant replied saying inter alia that they paid duty under protest for the reasons that they could not obtain CT-2 certificates in time but these were obtained and submitted to the Central Excise Range Office subsequently. The Assistant Commissioner however, rejected the claim holding that it was time barred and the appellant have not followed the procedure for payment of duty under protest under Rule 233B. This order having been upheld, the present appeal has been filed. Shri G. Shiva Das, the learned Counsel appearing for the appellants drew our attention to the additional grounds raised by the appellant before the Tribunal. It was contended that their letter to the Assistant Commissioner dated 3-10-1985 should be construed as a protest letter for the duty paid after that date. The learned Counsel for the appellant argued that for the earlier period that letter of 3-10-1985 itself will constitute their refund claim for which the learned Counsel cited a case law reported in 1989 (43) 424 (Tribunal) in the case of Poulose & Matthen v. Collector of Central Excise and also 1984 (15) E.L.T. 455 (Tribunal) in the case Sirpur Paper Mills Ltd. v: Collector of Central Excise, Madras to say that a letter of the assessee written to the department can be construed as a refund application and as also letter seeking reclassification of the goods has also been considered. Therefore, the learned Counsel urged that in this case the appellant letter of 3-10-1985 constituted a letter of protest for the period subsequent to that date under Rule 233B and that the same letter would constitute a refund claim and the relevant date under Section 11B has to be calculated from that date only. The learned Departmental Representative Shri Satnam Singh contended that there is a clear non-compliance with the provisions of Rule 233B in this case. The learned Departmental Representative referred to the vairous provisions of Rule 233B which have not been complied with by the appellant.
2. We have carefully considered the submissions made by both the parties. Formal refund claim in this has been filed with the Assistant Commissioner on 6-9-1988 for the period 9-5-1985 to 18-10-1985 nearly 3 years after the relevant date paying duty on the goods cleared. The appellants are heavily relying upon their letter of 3-10-1985 which according to them should serve the twin purposes of a protest letter for the period beyond that date and as the refund claim itself for the earlier period. We are unable to wholly accept this contention. The perusal of the above said letter shows that in that letter they had stated that they were supplying Rock Roller Bits to Oil India Limited and O.N.G.C. and requested the Assistant Commissioner to authorise them to despatch goods without payment of duty in terms of Notification No. 215/83 and 211/85 dated 24-9-1985. It is seen that this letter merely seeks payment from the Assistant Commissioner to authorise them to send the goods to the Organisations without payment of duty under exemption Notification. For this letter being considered as a refund a refund claim there is no material for the Assistant Commissioner as it does not contain any quantity of the goods supplied nor does the letter specified the period for which the refund claim is made whereas the letter considered by the Tribunal in the Poulose & Matthen case Supra, there was clear indication of the precise quantity of carbondioxide cleared by the appellant therein for which the refund was claimed. It is also to be noted that at the time of sending this letter, the appellant did not have the eligibility for the exemption. The necessary CT-2 certificates for operating under the exemption notification were not yet in their possession. Therefore, the contention of this letter is sufficient to constitute refund claim under Section 11B is unacceptable. The letter of the assessee considered by the Tribunal in the Sirpur Paper Mills case was also not parallel with the nature of the letter of 3-10-1985 of the appellant herein. There it was a clear case of the assessee seeking the refund on the ground of wrong classification of the product in the approved classification list under the Central Excise Tariff giving reasons for their claim for classification under Tariff Item having lower rate of duty. Therefore, on this ground also the letter of 3-10-1985 cannot be considered as a refund claim. As regards the contention that should be considered as a letter of protest to save the refund claim from limitation, it is felt that there is nothing in the letter to indicate that they will be paying duty under protest. On the other hand, they are only seeking authorisation for clearance of the goods to the two organisations ONGC and Oil India Limited, citing the two notifications. However, the letter is clear enough to indicate their intention to clear the goods in terms of this exemption. In such circumstances having regard to the further fact that in the gate passes for the period they seem to have made endorsement of paying duty under protest, it will be reasonable to accept this as a letter of protest on the facts and in the circumstances of this case and in this view of the matter the jurisdictional Assistant Commissioner may consider their eligibility for the refund taking the letter to 3-10-1985 as a letter of protest for the clearances subsequent to that period and on satisfying himself that the conditions for claiming the exemption under the relevant notification have been satisfied in substance. The appeal is disposed of with the above direction by way of remand in the above terms. The Assistant Commissioner may dispose of the refund claim in accordance with law and after hearing the appellant in the matter.