Customs, Excise and Gold Tribunal - Tamil Nadu
S.M. Kannappa Automobiles (P) Ltd. vs Collector Of Central Excise on 27 November, 1990
Equivalent citations: 1992(40)ECR514(TRI.-CHENNAI)
ORDER
S. Kalyanam, Member
1. This appeal is directed against the order of the Collector of Central Excise (Appeals), Madras, dated 23.12.1988 confirming the order of the Assistant Collector of Central Excise, Bangalore, (Lalbagh Division) dated 29.7.1988 and rejecting the appellants' refund claim for a sum of Rs. 2,67,046 under Section 11B of the Central Excises & Salt Act, 1944, the 'Act' for short.
2. Shri Ravishankar, the learned Chartered Accountant for the appellants submitted that the appellants are engaged in the activity of body-building of motor vehicles on duty paid chassis as independent body-builders. He urged that the Govt. of India issued a Notification No. 248/87 on 4.11.1987 under Section 11C of the Act as under:
Whereas the Central Government is satisfied that according to a practice that was generally prevalent regarding levy of duty of excise (including non-levy thereof) under Section 3 of the Central Excises and Salt Act, 1944 (1 of 1944), the duty of excise on body built motor vehicles cleared by independent body builders, and falling under Heading No. 87.02, 87.03 or 87.04 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereunder referred to as the said goods), was being levied, during the period commencing on the 1st day of March, 1986 and ending with the 30lh day of June, 1986, under the said Section 3, at a nil rate of duty of excise or at a lower rate of duly of excise in terms of the provisions of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 175/86-Central Excises, dated the 1st March, 1986, though the said goods were not otherwise covered within the purview of the said notification.
Now, therefore, in exercise of the powers conferred by Section 11C of the Central Excises and Salt Act, 1944 (1 of 1944), the Central Government hereby directs that so much of that portion of the duty of excise payable in respect of the said goods as is in excess of that payable under the said Section 3 read with the said notification, but for the said practice, shall not be required to be paid for the period aforesaid, in accordance with the said practice.
The learned Counsel further submitted that Notification No. 18/88(NT) dated 29.6.1988 incorporated Sub-section (2) to Section 11C and made it operative from 1.7.1988 and amendment that came into existence on 1.7.1988 read as under:
(2) Where any notification under Sub-section (1) in respect of any goods has been issued, the whole of the duty of excise paid on such goods, or, as the case may be, the duty of excise paid in excess of that payable on such goods, which would not have been paid if the said notification had been in force, shall be refunded in accordance with the said notification.
Provided that the person claiming the refund of such duty or, as the case may be, excess duly, makes an application in this behalf to the Assistant Collector of Central Excise before the expiry of six months from the date of issue of the said notification and proves to the satisfaction of the Assistant Collector of Central Excise that the incidence of such duty had not been passed on to any other person.
Shri Ravishankar submitted that in terms of Sub-section (2) of Section 11C above the appellants took out a refund application on 12.4.1988 well within the period of 6 months from the date of issue of 11C notification 248/87 dated 4.11.1987. Though the appellant would be entitled to refund in view of the amendment under Section 11C, Sub-section (2) operative from 1.7.1988 and though the refund application had been preferred within the period of 6 months from the date of issue of the notification under Section 11C, the authorities below did not address themselves to this issue and merely chose to reject the appellants' refund claim under Section 11B of the Act holding that the refund claim was not within the period of 6 months from the relevant date under Section 11B of the Act.
3. Shri Ravishankar, the learned C.A., assailed the reasoning of the authorities below in this regard and also placed reliance on the decisions in the case of Collector of Central Excise v. Mahaveer Spg. Mills Ltd. and the ruling of the Madras High Court in the case of M.R.F. Ltd. v. C.C.E. urged that the ratio of the said rulings would squarely govern the instant case as well.
4. Heard Shri Sundararaju, the learned SDR.
5. We have carefully considered the submissions made before us and have gone through the records. The authorities below have not considered the question with reference to the applicability of Section 11C(2) referred to and relied upon by the appellants and we also do not find consideration of applicability and relevance of the citations urged before us. We, therefore, do not propose to go into the issue at the second appellate stage and we, therefore, set aside the impugned order and remit the matter to the original authority for consideration of the issue in the light of our observations above and also in the light of the ratio of the decisions relied upon by the appellants. The appeal is thus allowed by remand.
(Pronounced in open court)