Customs, Excise and Gold Tribunal - Tamil Nadu
Collector Of Central Excise vs Vikrant Tyres Ltd. on 20 September, 1990
Equivalent citations: 1992ECR519(TRI.-CHENNAI), 1992(58)ELT224(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. This appeal, filed by the Department, is directed against the order of the Collector of Central Excise (Appeals), Madras dated 19-7-1989. The short question that arises for consideration in the present appeal is whether an assessee, without filing an appeal against an order passed on the classification list, would be entitled to claim the benefit of a particular notification by taking out a refund application within a period of six months, even in a situation where he is entitled to the benefit of the said notification. Shri P. Sundararaju, learned S.D.R. contended that inasmuch as the assessee did not claim the benefit of an exemption notification while filing the classification he cannot be allowed to claim the benefit of the same by way of a refund application under Section 11B of the Central Excises & Salt Act, 1944.
2. Shri Krishna Srinivasan, ld. Counsel for the respondent submitted that the issue is covered by a ruling of the Calcutta High Court in the case of 'I.T.C. Ltd. and Anr. v. Union of India and Ors.', reported in 1988 (34) ELT 473 (Cal.) and also relied upon the Bench rulings of this Tribunal in 'Collector of C. Ex. v. Mysore Acetate and Chemicals Co. Ltd.' - 1990 (47) ELT 687 (Tri.) and 'Collector of C. Ex. v. Fenner (India) Ltd.', reported in 1990 (45) ELT 428.
3. We have carefully considered the submissions made before us. The Bench of this Tribunal in the case of "Mysore Acetate and Chemicals" cited supra, in the context of a refund under Section 11B in a situation similar to the one arising in the present case, has observed as under :-
"The Supreme Court in Elson Machines case has repelled the contention of the party that once a classification list is approved, the Excise authority was estopped from taking a different view. The Supreme Court held that there can be no estoppel against the law and "the claim raised before us is a claim based on the legal effect of a provision of law and, therefore, this contention must be rejected". The Calcutta High Court has also in the case of 'I.T.C. Ltd. and Anr. v. Union of India and Ors.', reported in 1988 (34) ELT 473 (Cal.), held that Section 11B of the Act has provided the substantive and the machinery provision for refund of any excess duty paid under Section 11B cannot be interpreted in such a way as to render it negatory and unworkable. In the present case, admittedly the respondent is entitled to the benefit of the notification and consequential refund. It is also admitted that the respondent took out an application for refund before the expiry of the period of limitation under Section 11B of the Act. In such a situation, merely because either due to ignorance or due to inadvertence the respondent did not claim the exemption in the classification, the respondent cannot be denied the right to claim the refund under Section 11B of the Act. Section 11B confers an independent right and a substantive right on the respondent to claim refund if it is otherwise permissible in law. The respondent cannot be estopped from claiming the refund merely on the ground that he did not claim the benefit of the notification in the classification. Since the ruling in Modi Rayon and Silk Mills case is that of two learned Members' of the Special Bench and the ruling in the Delhi Chemicals case is a concurrent finding of the view of three learned Members, we follow the ratio of the Special Bench ruling in the Delhi Chemicals case and hold that the respondent* is entitled to the refund amount in question. In this view of the matter, we uphold the finding of the lower appellate authority in the impugned order and dismiss the appeal."
We would also like to note that the Judgment of CEGAT Special Bench in "Modi Rayon and Silk Mills v. Collector of C. Ex., Meerut," [1987 (27) ELT 933], has been expressly over-ruled by the Calcutta High Court in the decision cited supra. The Special Bench of the Tribunal on a number of occasions has taken the same view similar to the one taken by the South Regional Bench in the case of "M/s. Mysore Acetate and Chemicals" referred to above. A similar view has also been taken by the Bench in a situation where the Department resorted to the recovery proceedings under Section 11A. We, therefore, do not find any merit in the appeal and the same is accordingly dismissed.