Customs, Excise and Gold Tribunal - Tamil Nadu
Mahaveer Metal Industries vs Collector Of Central Excise on 5 May, 1987
Equivalent citations: 1987(13)ECC279, 1987(31)ELT739(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. This appeal is directed against the order of the Collector of Central Excise (Appeals), Madras dated 28.8.1986. The appellants are manufacturers of Copper and Copper Alloys under a Central Excise licence and in respect of certian irregularities in proforma credit taken by the appellants, proceedings were instituted against the appellant by the authorities which resulted in the order of adjudication at the hands of the Deputy Collector of Central Excise, Madras, who by his order dated 29.7.1981 demanded a duty of Rs. 7,059.93 besides imposing a penalty of Rs. 2,000/-on the appellants. This order of the Deputy Collector was appealed against and consequent on the appeal being rejected by the appellate authority namely, the Appellate Collector of Central Excise, Madras by order dated 13.11.1981, the appellants filed a revision application to the Government of India as per law and by order dated 30.5.1984 the revisional authorities set aside the impugned order and remitted the matter for de novo consideration. Consequent on the order of renamd by the revisional authority, the Deputy Collector by order dated 19.3.1985 dropped the proceedings against the appellant. In pursuance of the order of the Deputy Collector dated 19.3.1985 dropping all proceedings against the appellant, the appellant filed an application for refund of the duty and penalty referred to supra, which was granted by the Assistant Collector of Central Excise in or about September 1985. The Collector of Central Excise, Madras reviewed the said refund of the Assistant Collector in exercise of the powers vested in him under Section 35E(2) of the Central Excises and Salt Act, 1944 ("the Act" for short) and directed the Assistant Collector of Central Excise in terms-of Section 35E(4) of the Act to file an appeal. Accordingly an appeal was filed before the Collector of Central Excise (Appeals), as per the statutory direction of the Collector of Central Excise and the same came to be allowed under the impugned order now appealed against. The present appeal is against the said impugned order.
2. Shri Vijayaraghavan, the learned consultant for the appellant submits that when the appellant has come to be entitled to an amount by way of refund in pursuance of an order passed by the Deputy Collector dated 19.3.1985 in adjudication, the question of the appellant filing a separate application for refund in terms of Section 11B(1) of the Act just does not arise. The learned consultant, therefore, assailed the view of the appellate authority under the impugned order that the appellant should have filed a separate refund application within the period of limitation in terms of Section 11B(1) as incorrect. The learned consultant further urged that Section 11B(3) of the Act is intended to govern and cover situations where a person becomes entitled to any refund as a result of an order passed in appeal or revision under the Act.
3. Shri K.M. Vadivelu, the learned D.R. submitted that the original order namely, the order of the Deputy Collector, dated 19.3.1985 is an order in pursuance of the remand of the proceedings by the revisional authorities and such as order of the Deputy Collector cannot be construed to be an order in appeal or revision so as to come within the mischief of Section 11B of the Act. The learned D.R. further urged that the issue is squarely covered by Section 11B(1) of the Act in which case admittedly no refund claim having been taken before the expiry of six months from the relevant date, the claim is barred by limitation as held by the lower appellate authority.
4. The short question that arises for my consideration is whether the amount refunded to the appellant in the instant case could be recalled on the ground that such refund was barred by the provisions of limitation in terms of Section 11B(1) of the Act or whether the issue would come within the mischief and ambit of Section 11B(3) of the Act. For the purpose of convenience I should like to extract the relevant clauses of Section 11B relating to claim of refund of duty :-
"11B. Claim for refund of duty. - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date :
Provided that the limitation of six months shall not apply where any duty has been paid under protest....
(3) Where as a result of any order passed in appeal or revision under this Act refund of any duty of excise bacomes due to any person, the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf."
In the instant case the Government of India, as revisional authority, passed the orders remanding the issue for de novo consideration by the original authority and in pursuance of such order of remand, the original authority, namely, the Deputy Collector passed an order of adjudication on 19.3.1985 dropping all further proceedings against the appellant. This order of the Deputy Collector of Central Excise, Madras is an order of adjudication and if a person becomes entitled to any amount by way of refund in pursuance of an order passed by an adjudicating authority in adjudication, the person concerned need not take out an application for refund in terms of Section 11B(1), extracted above, within a period of six months; in other words as is clearly stated in Section 11B(3), extracted above, if as a result of an order passed in appeal or revision under the Act refund of any duty of excise is due to any person, the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf. It cannot be disputed that in the present case the appellant became entitled to the refund in pursuance of an order passed by the Deputy Collector on 19.3.1985. The contention of the learned D.R. that this is not an order passed in appeal or revision and so would not be governed lay Section 11B(3), is not legally tenable. It is a settled proposition of law that an appeal is a continuation of a suit; in other words an appeal has always been held to mean "the removal of a cause from an inferior to a superior Court or forum for the purposes of testing the soundness of the decision of the inferior Court". It is thus a remedy provided by law for getting the decree or order of the lower Court cancelled. An appeal is not a fresh suit or cause but is only a continuation of the original proceedings and a stage in the original suit or proceedings themselves. The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded -as one legal proceeding. The above principles are covered by the ratio of the rulings of the constitutional Bench of the Supreme Court reported in AIR 1957 SC 540 in the case of 'Garikapati Veeraya v. N. Subbiah Choudhry and Ors.' which are applicable in the present case. In the present case as against the order passed by the appellate authority a revision was filed before the competent revisional authority namely, the Government of India who remitted the issue for a de novo consideration and pursuant to such an order of remand the Deputy Collector passed an order of adjudication dropping all proceedings against the appellant. In such a context it cannot be contended by any stretch of imagination that as against the order of the Deputy Collector the appellant should have filed an application for refund before the Assistant Collector of Central Excise before the expiry of the period of six months in terms of Section 11B(1) of the Act. It should be noted in this context that any order passed by the authorities under Section 11B(1) of the Act is in exercise of a quasi-judicial power as an adjudicating authority and such order is an appealable order. It would be paradoxical to hold that when a superior authority namely, the Deputy Collector passed an order in favour of the party in exercise of the quasi-judicial power in adjudication, in order to get the fruits of such an order, the party should go before his subordinate authority namely, the Assistant Collector of Central Excise in terms of Section 11B(1) of the Act and invite an order of adjudication on an appealable order in exercise or a quasi-judicial power. If one were to accept this contention and hold it as correct, it would lead to an anomalous and paradoxical situation where a subordinate authority namely, the Assistant Collector of Central Excise would be virtually sitting in judgment over an order passed by a competent superior authority in adjudication namely, the Deputy Collector of Central Excise. Nobody can contend with any justification in law that the Assistant Collector of Central Excise is an appellate -authority over the order passed by a Deputy Collector of Central Elxcise in adjudication in terms of Section 11B of the Act. Unless in the instant case it is held that the issue is directly and squarely covered by Section 11B(3) of the Act, any other interpretation or the one which the learned D.R. is pleading, would lead to a situation of manifest anomaly and... as indicated above. Therefore, on consideration of the issue and the materials before me, I have no hesitation to hold that the appellant does not have to take out a refund application at all in the present case in the facts and circumstances ' as it is squarely covered by Section 11 B(3) of the Act. In this view ot the matter I set aside the impugned order appealed against and allow the appeal.