Customs, Excise and Gold Tribunal - Delhi
I.D.P.L. Hyderabad vs Collector Of Central Excise on 20 October, 1986
Equivalent citations: 1987(10)ECR395(TRI.-DELHI), 1987(27)ELT356(TRI-DEL)
ORDER
1. The question for decision in this appeal filed by the appellants M/s. I.D.P.L. who are a Government of India undertaking is eligibility of the appellants to refund in respect of their product "Vitamin Premix" for the period from 1978 to 30.10.1981.
2. We have heard Shri N.K. Dev, Consultant for the appellants and Shri S.R. Kunte, DDR for the Respondent and have perused the papers.
3. Earlier the appellants were classifying and clearing their product under Tariff Item 14-E of the Central Excise Tariff. On 9.3.1981, the appellants filed classification list claiming Tariff Item 68 as proper classification for their product. They, however, continued to pay duty as specified under Tariff Item 14-E. This classification list was approved by the Assistant Collector on 1.4.1982. This classification under Tariff Item 68 is not in dispute. The appellants then applied for refund of differential duty for the period specified in para-1 above. The Assistant Collector of Central Excise, Hyderabad by his Order-in-Original dated 20.9.1982 (para-2) held that claim for refund of differential duty paid on product cleared by the assessee on or before 9.6.1981 was time-barred, under section 11-B of the Central Excises and Salt Act, 1944. Thus, according to him, refund for the period 10.6.1981 to 30.10.1981 was within time. Surprisingly, however, in the last para of his order, he rejected the entire claim for refund.
4. Before us Shri N.K. Dev, learned Consultant for the appellants prays that the appellants are pressing the claim for refund only for the period 9.3.1981 to 30.10.1981 i.e. the date on which the list claiming classification for the product under Tariff Item 68 was filed on 9.3.1981 and thereafter. In our view as the appellants were paying full duty it was not necessary for them to make a request to the Assistant Collector to permit them to follow the procedure prescribed for provisional assessment and to execute a bond securing differential duty which should have been otherwise necessary under Rule 173-B(2-A) read with Rule 9-B of the Central Excise Rules, 1944. The Assistant Collector also may not have considered it necessary to have recourse to this provision because there was no question of securing differential duty. Besides, Shri N.K. Dev, also tells us that the appellants had throughout this period paid duty under protest by making suitable endorsement on the gate passes for the period aforesaid. We also find that -the appellants had addressed letter dated 9.3.1981 to the Assistant Collector of Central Excise, Hyderabad praying that they may be permitted to pay duty in respect of the product under Tariff Item 68 and not under 14-E. To the same effect is another letter dated 12.9.1981 in which the appellants state that they are paying duty under protest in respect of the product. Shri Dev also submitted that Rule 233-B of the Central Excise Rules, 1944 which provides for procedure to be followed in cases where duty is paid under protest came into force w.e.f. 1.6.1981 and the appellants' claim for the period 9.6.1981 and period thereafter even according to the Assistant Collector of Central Excise was not time barred. Therefore, the infirmity in following correct procedure under Rule 233-B would not make any material difference to the Appellants' claim. Shri Kunte for the respondent agreed that so far as the appellants' claim for refund for the period 9.6.1981 to 30.10.1981 is concerned, in view of the order of the Assistant Collector the same ought to have been granted by him in view of the reasonings adopted by him. As for the appellant's claim for refund for the period 9.3.1981 to 9.6.1981 he had no particular comments to make but he submitted that the claim for refund relating to the period 1.6.1981 to 9.6.1981 after Rule 233-B had come into force deserves rejection as appellants for this period had not followed the procedure prescribed for protest under the Rules.
5. The Assistant Collector approved their classification list from 1.4.1982 but this classification list was filed by the appellants on 9.3.1981. We see no reason why it should not be given effect from 9.3.1981 itself.
As for the appellants having not followed the procedure prescribed under Rule 173-B(2-A) read with Rule 9-B, as already observed the appellants were paying full duty, therefore, there was no necessity for them to have recourse to this procedure. As for Rule 233-B the substantial part of the appellants' claim after 9.6.81 to 30.10.81 even according to the Assistant Collector is not affected by this Rule. The period which may be hit by the Rule is 1.6.1981 to 9.6.1981 i.e. the date from which Rule came into force and the date which has been found by the Assistant Collector to be beyond time. The only rejectable part of the appellants' claim taking into consideration the procedure prescribed by Rule 233-B is from 1.6.1981 to 9.6.1981. Rest of appellants' claim for the period from 9.3.1981 to 31.5.1981 and 10.6.1981 to 30.10.1981 the latter being within time even according to the Assistant Collector should be granted and allowed.
6. As a result the appellants' claim for refund for the period 9.3.1981 to 31.5.1981 and 10.6.1981 to 30.10.1981 are hereby granted and allowed. Rest of their claim is rejected. The appeal is disposed of in these terms.