Customs, Excise and Gold Tribunal - Delhi
Himachal Steel Kandrori vs Collector Of Central Excise on 21 June, 1988
Equivalent citations: 1988(18)ECR455(TRI.-DELHI), 1988(37)ELT291(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. Being dissatisfied with the rejection of a part of refund claim the appellants have filed their instant appeal.
2. Factual backdrop : The appellants lodged their refund claim for Rs. 37,907.90 which had arisen on account of Trade Notice No. 34/78, dated 18.7.1978 under which the goods manufactured by the appellants were classified under T.I. 26AA(ia) instead of T.I. 26A(III) which were exempted from payment of duty. Refund claim amounting to Rs. 10,985.53 was sanctioned by the then Assistant Collector, Central Excise Division, Chandigarh and rest of the claim was rejected being barred by limitation vide his Order dated 23.8.1979. Against this Order of rejection of the refund claim in part the appellants went in appeal before the Collector (Appeals), New Delhi, who vide his Order-in-Appeal No. 178-CE-CHG/82, dated 18.11.1982 held the claim within time and in view of his findings that the claim was within time he directed the Assistant Collector to examine the claim on merits and pass necessary orders. On remand it appears that the Assistant Collector instead of processing the claim on merits as directed by the Collector (Appeals) issued a letter dated 13.11.1984 (in the form of show cause notice) to the appellants asking them to show cause as to why their refund claim be not rejected being barred by time. In reply, the appellants while challenging the jurisdiction of the Assistant Collector to reopen the issue of limitation vehemently contended that as a matter of fact the amount in question became payable on the date when their appeal was accepted by the Collector (Appeals) vide his aforesaid order dated 18.11.1982 and it was obligatory on him (Assistant Collector) to send the amount immediately as directed by the Collector (Appeals) without any further correspondence. However, the Assistant Collector ignoring the Order passed by the Collector (Appeals) dated 18.11.1982 whereby he held the claim as within time rejected the same on the ground that it was time-barred, holding that the Collector (Appeals) vide his Order dated 18.11.1982 directed him to examine the claim and pass necessary orders. Against this order the appellants again went in appeal before the Collector (Appeals), New Delhi who in turn also without referring the earlier Order passed by his predecessor on 18.11.1982 holding the claim within time upheld the Order of the Assistant Collector vide his impugned Order dated 22.6.1987. Hence the present appeal.
3. Before I proceed further it would be relevant to mention here that after sanctioning a part of the refund claim for Rs. 10,985,83 out of the amount of Rs. 37,907.90 vide Order dated 23.8.1979 the Assistant Collector felt that due to wrong calculation an amount of Rs. 1518.57 was sanctioned in excess. Hence subsequently he raised a demand for Rs. 1518.58 and ultimately confirmed it vide his Order dated 2.2.1980 which was upheld on appeal by the Collector (Appeals) vide his Order-in-Appeal No. 433-CE/CHG/84, dated 12.7.1984 with the result that out of the sanctioned amount of Rs. 10,985.53 an amount of Rs. 9,466.96 only stood paid to the appellants. All these facts are admitted to other parties and are not in challenge. I have thought it proper to mention all these facts to make the Order complete.
4. Shri Harbans Singh, Advocate appearing for the appellants vehemently contended that the earlier adjudication order dated 23.8.1979 rejecting the refund claim of the appellant in part on the ground that the same was time-barred was set aside by the Collector (Appeals), New Delhi vide his Order dated 18.11.1982 holding expressly that 'the claim has to be treated in time" and after holding so directed the Assistant Collector to examine the claim on merits, that is to say, to examine the same as to whether it was otherwise in order. Against this order of the Collector (Appeals) the department never filed any appeal with the result that the said Order of the Collector (Appeals) sofaras it held the claim Within time became final and binding on the parties. Under these circumstances submitted the learned counsel for the appellants that the Assistant Collector had no jurisdiction to reopen the issue of time-par. To buttress his arguments he cited the following case law:
(1) Scientific instruments Company Ltd. v. Collector of Customs, 1980 ELT 89 (Cat.) - wherein it was held that when an Order is set aside by the Appellate Authority and the case is remanded back with specific directions then the power and jurisdiction of the lower authority is limited to the extent the case is remanded back. It was specifically laid down that in such cases entire matter is not at large before the lower authority nor such authority is free to decide the case in his own way.
(2) Hasmukhlal Amritlal Mehta v. N.B. Sonavene, 1982 ELT 67 (Bom.) - wherein it was held that the Collector of Customs (Preventive) cannot reconsider the question which has already been decided by the Revisionary Authority.
(3) Somasundaram Mills v. Collector of Central Excise, 1986 (25) ELT 691 (Tribunal) - wherein it was held that where a refund claim was partly allowed by the Appellate Collector on the ground of limitation and such decision of the Appellate Collector was never reviewed by the competent authority it becomes final and therefore, cannot be challenged.
(4) Kerala State Detergents and Chemicals Ltd. v. Collector of Central Excise, 1987 (27) ELT 312 (Tribunal) - wherein it was held that where the remand order for readjudication is restricted to a particular issue other issues cannot be raised again in readjudication.
5. In reply Smt. Nisha Chaturvedi, learned SDR supported the impugned order and submitted that the earlier Order-in-Appeal dated 18.11.1982 passed by the Collector (Appeals) upholding the claim within time was wrong and therefore, the Assistant Collector on remand was right in rejecting the claim of the appellants as time-barred.
6. I have considered the arguments and the case law cited by the learned counsel for the appellants. It is admitted to the respondent that the earlier adjudication order dated 23.8.1979 holding a part of the refund claim as time-barred was set aside by the Collector (Appeals) vide his Order dated 18.11.1982 expressly holding that 'the claim has to be treated in time". It is further admitted to the respondent that no appeal was filed against that Order of the Collector (Appeals) which held the claim as within time, by the department. Thus in my opinion the said Order of the Collector (Appeals) dated 18.11.1982 holding the refund claim within time whether right or wrong became final and cannot be raised again in readjudication as held by this Tribunal in the case of Kerala State Detergents and Chemicals Ltd. v. Collector, supra. The observations of the Assistant Collector in his readjudication Order dated 7.1.1985 that the said Order dated 18.11.1982 passed by the Collector (Appeals) in fact directed him to examine the claim and pass necessary orders is partly correct. But it is settled law that Order of the Appellate Authority is to be read as a whole and not in part. From a perusal of the said Order dated 18.11.1982 of the Collector (Appeals) it would appear that the only issue before him was as to whether the Assistant Collector was right in rejecting the part of the claim of the appellants as time-barred and the learned Collector after examining the facts and the case law cited by the appellants expressly recorded a finding that the claim has to be treated in time. And after holding so directed the Assistant Collector to examine the claim on merits and pass necessary orders but it is unfortunate that the Assistant Collector overlooked the said expressed findings recorded by the Collector (Appeals) in his Order dated 18.11.1982 that the claim was within time and quoted the last sentence of the said Order whereby the Collector (Appeals) directed him to examine the claim on merits and pass necessary orders. Forgetting further that he cannot reconsider the question which has already been decided by the Collector (Appeals),(See Hasmukhlal Amritlal Mehta v. N.B. Sonavene, supra) and then as a result of the Order of the Collector (Appeals) the entire matter before him was. not at large and he was not free to decide the case in his own way and also to decide the question of limitation again (See Scientific Instruments Company Ltd. v. Collector of Customs, supra). In a nutshell, he was bound by the Order dated 18.11.1982 passed by the Collector (Appeals) holding that the claim was within time. It Is again unfortunate that while deciding the appeal filed by the appellants against the readjudication order dated 7.1.1985 the Collector (Appeals) also failed to take note of the earlier Order passed by his predecessor on 18.11.1982 which was referred to in the readjudication order passed by he Assistant Collector inasmuch as he was very much bound by the earlier Order passed by his predecessor in the instant case which was admittedly never reviewed or challenged in appeal by the department. Under these circumstances I have no hesitation in holding that the impugned order holding the claim of the appellants as time-barred is without jurisdiction and therefore it cannot be allowed to stay even for a moment.
7. In the result the appeal is allowed and both the orders passed by the two authorities below are set aside and the case is remanded to the Assistant Collector with the direction to examine the claim of the appellants strictly in accordance with the remand order dated 18.11 1982 passed by the Collector (Appeals), New Delhi and to grant the consequential relief expeditiously as the case is old one.