Customs, Excise and Gold Tribunal - Mumbai
M/S. Mehta Alloys Pvt. Ltd. vs Commissioner Of Central Excise & ... on 20 April, 2001
Equivalent citations: 2001(135)ELT97(TRI-MUMBAI)
ORDER J.H. Joglekar, Member (T)
1. When this application was taken up I find that the appellants have claimed inability to attend and have requested that the appeal be decided on merits. I do so on hearing the departmental representative.
2. In terms of the query made by t he bench sitting on 22.12.2000 Shri Choubey informed the bench that the amount sanctioned has been paid.
3. The appellant was operating under the provisions contained in Section E-VI of chapter V of the Central Excise rules, 1944 which provided for compounded levy on stainless steel, pattas/pattis. They had deposited a duty of Rs.40,000/- on 1.9.1995 in the month of September, 1995. Their factory was closed from 9.9.1995. In terms of rule 96 ZGG an application was made for pro-rata refund of Rs.28,000/-. The claim was filed on 21.5.1996. Show cause notice was issued holding that the claim for refund was barred by limitation. The Assistant Commissioner relying upon the Tribunal judgment reproduced in 1987 (28) ELT 584 held that where an advance deposit was made it was in the nature of provisional payment and did not come under the purview of the time limits specified for refund. On his sanctioning the refund claim, the matter was taken up before the Commissioner. The Commissioner observed that the refund claim was made under rule 173S and therefore it was not refund of deposit. Applying the time-bar, be reversed the lower order resulting in the present appeal.
4. In the appeal memorandum the same claims are made as were made earlier.
5. I have seen the relevant rules. Rule 96 ZGG speaks of a situation where the assessee availing of this scheme stops production for certain time. This provision requires re-calculation of the duty payable for that period in which such cessation of work was noticed and makes for adjustment of the duty paid with the duty payable. On any excess payment being noticed it is required to be refunded. Any deficiency is also to be recovered. This rule thus is a self-contained rule.
6. The orders of the Assistant Commissioner indicate that the refund claim was made under provision only. It is not understood why the Commissioner (Appeals) has held that the refund claim was made under rule 173S and therefore. On this ground had applied the limitation under section 11AB.
7. The fact that what was deposited in duty and not any advance is apparent on the face of the said rule and need not be debated. The question that should have been addressed by the Commissioner is whether in the face of the language of the rule any refund to be payable thereunder would attract the provisions of section 11B or not. In holding for the claim being made under rule 173S the learned Commissioner has mis-directed himself in making this order.
8. This appeal is allowed. The impugned order is set aside. The proceedings are remanded back to the jurisdictional Commissioner (Appeals) for re-determination in the light of the observations made by me above.
9. The stay application also stands disposed of.
(Dictated in Court)