Customs, Excise and Gold Tribunal - Calcutta
Collector Of Central Excise vs Hindustan Bobbin Industries on 5 September, 1986
Equivalent citations: 1987(30)ELT315(TRI-KOLKATA)
ORDER S.K. Bhatnagar, Member (T)
1. Shri Thakur, speaking for the appellant submitted that in this case the respondent had filed a refund application for the period 3-4-1978 to 27-2-1979 on 19-5-1981 which was rejected by the Assistant Collector as time barred.
2. The respondent filed an appeal before the Collector (Appeals) who allowed the appeal and set aside the order of the Assistant Collector vide his order dated 26-10-1982.
3. It was their submission that the learned Collector (Appeals) has erred in allowing the appeal inasmuch as the refund application had been filed after expiry of six months from the date of payment of duty. At the time of filing the refund application Section 11B was already in existence and this Section excludes or precludes application of common law. Therefore, Collector (Appeals) has erred in taking cognizance of general law of limitation and applying the same.
4. It was their submission that in the case of Miles India Limited, Baroda v. Appellate Collector of Customs, Bombay (CEGAT) Special Bench, New Delhi has held that time limit provided under Section 27 of the Customs Act, 1962 was applicable and Tribunal cannot condone or relax the time limit laid down in the statute. This case was under Section 27 of the Customs Act but the same principle applies to the cases arising under the Central Excise Act, [1983 ELT 1026 (CEGAT)].
5. Shri Thakur further submitted that he would also like to draw attention to the judgment of the Hon'ble High Court of Andhra Pradesh in the case of Godavari Plywood Limited v. U.O.I. and Ors. [1984 (18) ELT 732 (A.P.)] in which it has been held that refund claim is time barred if filed beyond six months as laid down in Section 11B of the Central Excise Act, and period of three years as laid down in the Limitation Act Is inapplicable.
6. The learned advocate Shri Mukherjee submitted that it was originally a case under Notification No. 176/77. This Notification provides for exemption subject to the fulfilment of certain conditions laid down therein to the satisfaction of the Assistant Collector.
7. They had accordingly claimed the benefit of the exemption on 13-10-1980 as apparent from the order of the Assistant Collector communicated to them by a letter dated 2-5-1981. A photocopy of this letter C.No. V-(68)(3)113/Cal-VIII/80/2959, dated 2-5-1981 is produced herewith and may be taken on record.
8. It was their submission that they filed the refund application on 19-5-1981 i.e. within a month of receipt of this order of the Assistant Collector allowing them to avail of the benefit of exemption.
9. It was their submission that this letter amounts to an acknowledgement by the department of the fact that they were entitled to the benefit of exemption in terms of Notification No. 176/77. Therefore, the time limit should be computed with reference to the date of communication of this order. In this connection, they would like to draw attention to Section 18 of the Limitation Act. They would also like to draw attention to the Section 29(2) of the Limitation Act. The Limitation Act including this Section is applicable in certain situations and Section 29(2) refers to these situations. It cannot therefore, be said straightway that the Limitation Act will not apply in Central Excise matters.
10. As regards the cases cited by the learned SDR, it was their submission that these cases were on different footings.
11. I observe that in this case the respondent has asserted that he claimed the benefit of exemption on 13-10-1980. This date has been referred to by the Assistant Collector in his letter dated 2-5-1981 permitting the appellants to avail exemption under Notification 176/77. Therefore, the date i.e. 13-10-1980 is of crucial importance and the time bar is required to be calculated with reference to this date not the date of filing of the formal refund claim in 1981 which is merely consequential to and flows from the order of the Assistant Collector.
12. The respondent is also right in asserting that this letter of the Assistant Collector [dated 2-5-1981] amounts to acknowledging that the appellants were entitled to the benefit of the exemption notification in question. However, this provision has to be read with the relevant provisions of law and not in isolation. I consider that the law as in force on 13-10-1980 when the cause of action arose was the relevant law applicable in the instant case. As Section 11B came into force only on 17-11-1980 [vide Notification No. 182/80-CE, dated 15-11-1980]; therefore, Section 11B was not relevant and not applicable in this case.
13. It has already been held by the Tribunal in the case of New Jatiaga Valley Tea Estates Ltd., Calcutta v. Collector of Central Excise, Shillong [1983 ELT 1274 (CEGAT)] that in the case of conditional notification which make it obligatory to fulfil certain conditions laid down therein to the satisfaction of the Assistant Collector, it is the date on which the claimant first stakes his claim for its benefit is crucial and relevant for the purpose of the time bar.
14. I find that neither the Assistant Collector nor the learned Collector (Appeals) have taken these aspects of the matter into account. The order of the learned Assistant Collector is based on Section 11B which was not in force at the relevant time. Therefore, this order was rightly set aside by the learned Collector (Appeals).
15. The learned Collector (Appeals) has also not considered the matter with reference to the Tribunal order in the case of New Jatiaga Vallley Tea Estates Ltd., Calcutta v. Collector of Central Excise, Shillong [1983 ELT 1274 (CEGAT)] cited above. It is also not clear from the records of the case whether the assessment had been finalised by the time of the issue of the Assistant Collector's letter or not. This was crucial from the point of view of determining whether any time limit applied at all. But, unfortunately, neither the appellant nor the respondent has referred to this aspect at the Tribunal stage. It, therefore, appears to me that the order of the learned Collector (Appeals) and the order of the learned Assistant Collector are based on incomplete examination of basic facts and have been pased without reference to the relevant provisions of law.
16. I, therefore, set aside the order of the learned Collector (Appeals) and remand the case to the Assistant Collector to reconsider the matter in accordance with the law keeping in mind the observations mentioned above.