Customs, Excise and Gold Tribunal - Delhi
Collector Of Central Excise vs Samaj Biri Co. on 14 April, 1987
Equivalent citations: 1987(12)ECR36(TRI.-DELHI), 1987(29)ELT590(TRI-DEL)
ORDER P.C. Jain, Member (T)
1. In this reference application filed by the Collector of Central Excise, Kanpur, a purported question of law has been raised by the applicant in the following manner:
"whether the refund claim filed before the Assistant Collector for purposes of calculating limitation period as envisaged under erstwhile Rule 11 of Central Excise Rules, 1944, as well as order existed under Trade Notice No. 77/79, dated 25-4-1979 keeping in view the provision of the than existing rule."
It would be observed from the above by way of incidental remarks that no question has been framed at all. Possibly the Collector wants to state, as was stated by the learned SDR during the course of hearing, that a question of law arises whether a refund claim is within time or not in terms of erstwhile Rule 11 of the Central Excise Rules, 1944, is to be computed from the date of receipt of such claim in the office of the Assistant Collector of Central Excise or from the date of receipt of such claim by a Range Officer/Sector Officer subordinate to such Assistant Collector. We proceed now to examine whether the aforesaid question does arise out of the order of the Tribunal No. A/628/86-NRB dated 5-12-1986.
2. In order to appreciate the reference application a few facts need to be set out which are not disputed by the applicant. Prior to 6-8-1977 there was no statutory requirement of filing the refund application to the Assistant Collector under the then Rule 11 in force. With effect from 6-8-1977 Rule 11 was amended by substitution of a new rule providing for making the refund application to the Assistant Collector. Even after amendment of the said rule, refund applications were being filed by the assessees in the office of the Range Superintendent or Sector Officer as the case may be as was the position prevalent under the old rule. In 1977 when the rule was amended a trade notice No. 162/77, dated 17-8-1977 was issued under which a copy of notification 267/77, dated 6-8-1977 was circulated to the. Trade. In 1979, another Trade Notice No. 77/79, dated 25-4-1979 with reference to earlier trade notice No. 162/77, was issued by the Collector inviting the attention of the trade that the refund claims under the new rule taking effect from 6-8-1977 have to be filed with the Assistant Collector of Central Excise. The first sentence of para 2 of the said trade notice stated that "instances have come to notice where the refund claims were filed with the jurisdictional Sector Officer or the Range Officer which is not regular". Later on, another trade notice 206/80 was also issued by the Collector of Central Excise stating that "refund claims addressed to the Assistant Collector but lodged with the jurisdictional Sector Officer or Range Officer would be deemed to have been lodged with the Assistant Collector when accepted by the Sector Officer or Range Officer on behalf of the Assistant Collector for the purpose of computing the time limit of six months Under Section 11B of Central Excises and Salt Act. (Trade Notice 206/80 of 1980 has not been made available by the applicant nor by the SDR but the above extracts have been taken from last para at page 341 of the Report at 1987 (27) ELT 337 (Tribunal) in the case of Collector of Central Excise, Kanpur v. Prag Vanaspati, Aligarh relied upon by the applicant). This trade notice was, however, withdrawn by another trade notice No. 181/82, dated 18-5-1982.
3. Based on the above trade notice No. 206/80 and relying on an earlier judgment of the Tribunal in the case of Southern Petrochemical Industries Corporation Ltd. v. Collector of Central Excise, Madras 1986 (24) ELT 686 impugned order of the Tribunal which is the subject of the present reference application was passed holding that before 1980 the practice in the Kanpur Collectorate was that the refund claims were accepted by the Superintendent or lower officers on behalf of the Assistant Collector as was held in the case of Ambica Khandsari Udyog, Saharanpur v. Collector of Central Excise, Meerut 1985 (21) ELT 281 (CEGAT) in respect of the year 1978.
4. The applicant has now stated that a different judgment has been passed by the Tribunal in the case of Prag Vanaspati Ltd. mentioned supra which takes notice of the judgment of the Tribunal in the case of Southern Petrochemical Industries as well. It has been held by the Tribunal in the case of Prag Vanaspati Ltd. that time limit for the purpose of reckoning the time in respect of a refund claim has to be calculated from the date of receipt of such claim by the Assistant Collector. It has also been held by the Tribunal in the said case that there is no evidence before the Tribunal to show that there was an established practice in Kanpur Collectorate that the refund claims are filed by the assessees with Range Officer/Sector Officer who accepted them on behalf of the Assistant Collector in the year 1977.
5. We observe that the present case relates to a refund claim filed in 1979. We further observe that the finding of the Tribunal in the case of Prag Vanaspati Ltd. regarding absence of established practice is based upon a written letter of the Additional Collector of Central Excise, Kanpur. No such evidence has been produced by the department in the instant case. On the contrary, the inference of practice has been based by the Tribunal in the impugned order on trade notice 206/80. According to the extracts of the said trade notice quoted above, it appears that the practice of acceptance of refund claims by the jurisdictional Sector Officer or Range Officer on behalf of the Assistant Collector continued as late as commencement of Section 11B of the Central Excises and Salt Act which was brought into force on 17-11-1980; otherwise there was no need to issue the trade notice 206/80, had there been merely stray cases of filing of such refund claims with officers lower in rank than the Assistant Collector. We observe that the terms of the trade notice 206/80 as extracted above are fully satisfied in the instant case inasmuch as the refund claim was addressed to the Assistant Collector (though lodged with the Range Officer) and the refund claim was duly accepted by the Range Officer and sent to the Assistant Collector on his own rather than being returned
6. Applicant's reliance on the judgment of Supreme Court in the case of Miles India Ltd. v. Assistant Collector, (1985 ECR 289) is misplaced. Question before the Hon'ble Supreme Court in the said case was whether the Tribunal was governed by the general law of limitation of time in the face of specific limitation of time provided in the Special Act governing the creation and powers of the Tribunal. Hon'ble Supreme Court has held that limitation of six months provided under the Special Act would apply to cases before the Tribunal. There was no question before the Hon'ble Supreme Court about the manner of calculating the time limit of six months i.e. whether from date of receipt of claim by the Range Officer/Sector subordinate to the Assistant Collector or from the date of receipt of such claim by the Assistant Collector himself.
Apart from the question of established practice, it is also to be observed that the Collector has exercised his statutory jurisdiction in issuing supplementary instructions Under Rule 233 of the Central Excise Rules, 1944 and such instructions being beneficial to the assessees are enforceable by the trade. This has been so ruled by the High Court of Gujarat in 1977 ELT 367 (Guj. In the case of Navgujrat Paper Industries relying upon Supreme Court's observation in U.O.I. and Ors. v. Anglo Afghan Agencies (AIR 1968 SC 718). Such circulars make for just and fair administration of the law inasmuch as they reduce the rigours of technicalities of procedure as in the instant case. Hon'ble Supreme Court, somewhat in a similar vein, has observed in the case of U.O.I. v. A.V. Narasimhalu, 1983 ELT 1534 (SC) as follows:
"We trust that the Administrative authorities will act in a manner consistent not with technicalities, but with a broader concept of justice if a feeling is to be nurtured in the minds of the citizens that the Government is by and for the people."
7. In the result, no question of law worth a reference to High Court arises out of the impugned order. As such the reference application is rejected.