Customs, Excise and Gold Tribunal - Mumbai
Indian Oil Corporation vs Collector Of Central Excise on 11 April, 1991
Equivalent citations: 1991(56)ELT754(TRI-MUMBAI)
ORDER R. Jayaraman, Member (T)
1. This is an appeal directed against the Order-in-Appeal bearing No. M-51/BD-9/87 dated 15-4-1987 passed by the Collector of Central Excise (Appeals), Bombay rejecting the appellants' appeal.
2. The facts of the case are that the appellants have removed three consignments between 11-7-1983 to 13-7-1983 on payment of full payment of duty on furnace oil. They have got approved the classification list for concessional rate of duty in respect of furnace oil supplied to Fertilizers unit for use otherwise than as feed-stock in the manufacture of fertilizers and also as feed-stock chargeable to nil rate of duty. However, the aforesaid three consignments have been removed on full payment of duty without following Chapter X procedure under AR 3 documents. At the time of filing the R.T. 12 Returns, it was submitted by the appellants that they have paid in excess in respect of the aforesaid three consignments and the excess payment should be credited in the P.L.A. In this context, Shri R.M. Gohel referred to their letter dated 2-8-1985. However, the Supdt. while completing the assessment on the RT-12 returns on 20-9-1985, advised the appellants to file the refund claim before the Assistant Collector with the requisite documents namely warehousing certificate and end-use certificate. The appellants thereafter filed the refund claim only on 17-2-1986, which came to be rejected as time-barred by the Assistant Collector. The appellants' appeal before the Collector (Appeals) did not meet with success and hence the present appeal is before us.
3. Shri R. M. Gohel pleaded that they have got the approved classification list for payment of duty at nil rate in respect of feed-stock for fertilizers and at the concessional rate of duty in respect of supply to fertilizers unit other than use as feed-stock. However, in the case of three consignments, they have cleared the goods at the full rate by mistake, which they pointed out, while submitting the R.T. 12 Returns and asked for credit of the excess payment. The Supdt. ought to have exercised his powers under Rule 173-1 of the Rules and granted the credit thereof. Further, when he completed the assessment with the remarks that they should file the refund claim with the requisite documents, it would amount to meaning that he has accepted the excess payment but only directed for claiming it as refund from the Assistant Collector. The Supdt. ought to have given the credit in terms of the provisions of Rule 173-1 of the Rules. Even otherwise the date of assessment should be taken as relevant date for purpose of computing the time limit. If that is taken, the claim is within the time limit of six months. In this context he referred to the East Regional Bench in the case of Balaji Fasteners v. CCE reported in 1990 (46) ELT 543 and also in the case of Shree Digvijay Cement Co. Ltd. v. CCE by the Single Member reported in 1986 (25) ELT 994.
4. Shri A. V. Naik, the Ld. JDR, on the other hand, contended that the relevant notification under which the excess payment is allegedly made itself contemplates that the removal should be under Chapter X procedure. Admittedly in this case, the goods have been removed without following Chapter X procedure under bond. They were cleared on full payment of duty. The notification also stipulates that the goods intended to be removed are actually to be utilised for the intended purpose and the satisfaction should be that of the Assistant Collector. Hence there is a process of adjudication involved as to whether notwithstanding non-compliance with the provisions of Chapter X procedure with regard to removal, the benefit of the notification can be extended because of the subsequent documents alleged to be in their possession for claiming the concessional rate of duty. Hence the Supdt. is well justified in advising the appellants to file a refund claim with the requisite documents to enable the A.C. to adjudicate upon the refund claim. It is not a case of excess payment due to arithmetical error or mistake nor it is a case of clerical application of a higher value or higher rate of duty other than that approved. Though the appellants have got the lower concessional rate approved, it is subject to the conditions of the notification and when the conditions of the notifications have not been followed and the appellants on their own had paid the duty at the full Tariff rate they have to satisfy the Assistant Collector by establishing the fulfilment of Notification and claim refund. He had also pointed out that even after the Supdt. pointed out the requirement of filing the refund claim which has been admittedly received on 29-5-1985, the appellants had taken their own time to file the claim only on 17-2-1986. Had they acted upon immediately, the refund claim would have been within the time limit. He, thus supported the orders of the authorities below.
5. Shri Gohel, in reply stated that they had to collect the documents such as rewarehousing certificate and end-use certificate and then file the refund claim and in that process the delay has occurred.
6. After hearing both the sides, we are in full agreement with the Ld. JDR Shri Naik that the concessional rate of duty is available subject to certain prescribed conditions. One of the prescribed conditions namely removal under Chapter X procedure has not been admittedly followed, in which case the Supdt. could not be in a position to condone the same, especially when it is specified in the notification that the Assistant Collector is required to be satisfied with regard to end-use for the intended purpose. Hence the Supdt. under Rule 173-1 could not have given the credit as requested by the appellants. There is also considerable force in the argument of Shri Naik that even after the Supdt. advising the appellants well in time before the expiry of the time limit, the appellants have taken nearly 4 to 5 months in filing the refund claim and this is attributed to the time taken for collection of documents. This, itself goes to show that the endorsement made on R.T. 12 Return was without any basis and they had to get the evidences to substantiate their excess payment only at a later date. Hence the Supdt. could not have acted on his own on such an endorsement. Since the refund claim has been filed beyond the period of six months, the Assistant Collector was well within his right to dismiss the claim as time-barred, since the authorities functioning under the statute cannot go beyond the time limit prescribed under the Act. We also considered the citation made by the Dy. Manager of the appellants to urge that date of assessment is to be taken for computing the time limit. We find in the case of Balaji Fasteners (supra) the question is one of excess payment, where they were entitled to nil rate of duty, as per the approved classification list but they have paid excess duty, which they sought for adjustment. The case before us involves a process of adjudication and arriving at a satisfaction by the Assistant Collector. We also, note that the view taken by the East Regional Bench is different from the view taken by the South Regional Bench. The decision of the West Regional Bench sitting as a Single Member in case of Digvijay Cements is not acceptable in view of the majority decision on the very same issue in the case of Siemens (India) Ltd. Thane and Ors. v. CCE, Thane and Ors. reported in 1986 (25) ELT 821 (Tri.) holding that the date of adjustment in the P.L.A. in respect of an assessee working under the SRP is the relevant date and not the date of assessment of RT-12. Even the benefit of the Supreme Court judgment in the case of Samrat Shipping Co. reported in AIR 1991 (SC) 369 will not be available in this case. The admitted position is that classification list has been approved and the assessments were done in accordance with the approved classification list. Hence viewed from all the angles we are unable to agree to the arguments of the Dy. Manager of the appellants. We, therefore, reject the appeal and confirm the orders of the authorities below.