Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Central Excise & ... vs M/S. Anjani Synthetics Ltd. on 4 May, 2001
Equivalent citations: 2001(132)ELT688(TRI-MUMBAI)
ORDER G.N Srinivasan, Member (J)
1. Today when the application for stay is posted for hearing it is felt that the appeal itself could be disposed of. I have taken up the appeal itself for disposal with the consent of both the sides. In these two appeals the appellants are carrying on the business of manufacturing fabrics they have filed refund claims under deemed credit order. It is the case of the department that the refund claim has been filed beyond the period of six months under Rule 11B of the Central Excise Rules, 1944. In the appeal before me in paragraph 4 thereof, the respondents pleads reads as under:
4. The provisions under section 11B with respect to the relevant date has been specified under 'explanation' of para 5 which entails the usage of relevant date' in specific cases. In the present case, the 'relevant date' clearly falls under the category (B) of the explanation under para 5 of the section 11B of CEA, 1944. It has also been held by the Supreme Court in the case of M/s. Porcelain Electricals Mfg. Co. vs. CCE, New Delhi. Reported at 1998 (98) ELT 583 (SC), that for making claim for refund before the departmental authority an assessee must adhere to the period of limitation prescribed under the Central Excise Act and the rules framed thereunder.
2. When we look into the case has been argued by Shri JM George, he vehemently argued that there should be any difference between a man who files the refund claim in terms of Section 11B and the person who does not file refund claim within six months. The Section 11B I have considered the provisions relating to relevant date sub clause (B) of Clause (5) of Section 11B mentioned the relevant dates.
(B) "relevant date" means,-
(a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods,-
(i) If the goods are exported by sea of air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or
(ii) If the goods are exported by land, the date on which such goods pass the frontier, or
(iii) If the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India;
(b) In the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid;
(c) In the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory;
(d) In a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full dis-charge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction;
(e) In the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] (ea) In the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order;] (eb) In case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;]
(f) in any case, the date of payment of duty.] The instant case is in refund of refund claim arising under deemed credit the circumstances provided under sub clause (B) of clause (5) of Section 11B does not mention. Anything about refund, the claimable under deemed credit order. Since it is not mentioned there the period of limitation provided under Section 11B cannot be made applicable to the facts of the case. Hence the claim made by the appellant Commissioner is dismissed.
3. As far as the other point namely Notification No. 85/87 is concerned it has been held by the two member Bench in the case of Hotline Teletube & Components Ltd. Vs. Commr. Of C. Ex. Indore [1998 (102) ELT 33 (Tribunal)] that these are of only procedural matter and the substantive right of refund cannot be denied. I am not bound by the decision of the two member Bench referred to above even, thought it was vehemently argued by the Ld. DR. In the grounds of appeal there is a reference to M/s. Akanksha Steel Ltd. judgement. The DR seeks time to produce which I reject because when the case is put up even for stay petition is ought to have (sic) the Collector, when he filed the appeal he ought to have filed a copy of the judgement of the Tribunal when he refers to the same in the grounds of appeal otherwise he ought to have given journal in which it is referred. In view thereof I find there is no merit in the appeal of the department. Both appeals are dismissed.
(Pronounced in Court)