Customs, Excise and Gold Tribunal - Delhi
Maruti Udyog Ltd. vs Commissioner Of Central Excise on 4 November, 1997
Equivalent citations: 1998(98)ELT209(TRI-DEL)
ORDER G.R. Sharma, Member (T)
1. In the impugned order, the ld. Commissioner of Central Excise (Appeals) held that "the provisions are very clear and specifically required an application for refund, any communication or letters of condonation of delay to file registration papers in terms of Notification 162/86, dated 1-3-1986 cannot be treated as application for refund. I do not think that Section 11B allows any scope to disturb the requirement of refund application. The manufacturer/assessee during the process of levy and collection of Central Excise Duty undertake correspondence of varied nature with the Central Excise Department. To pick-up such correspondence and treat them as claim for refund would not be in the spirit of legal requirement of Section 11B. I, therefore, find that the relevant date for calculating the time limit of 6 months for filing refund claim was the period between September, 1992 to December, 1992 when the duty of excise were paid by the appellants. On the other hand, the claim for refund was filed on 27-8-1993. Thus the Asstt. Collector was justified in holding that the refund claim was time barred." The ld. Commissioner (Appeals) also distinguished the decisions of the Tribunal in the case of Appellants themselves reported in 1994 (73) E.L.T. 401 and also in the case of K.B. Foam Pvt. Ltd. v. Collector of C.E. reported in 1985 (19) E.L.T. 476 and in the case of Sirpur Paper Mills reported in 1984 (15) E.L.T. 455 and held that in the present case, the application for condonation of delay in filing the registration papers cannot be treated as refund application by any stretch of imagination. He, therefore, dismissed the appeal of the Assessee. Being aggrieved by this order, the appellants have filed the present appeal before us.
2. The facts leading to the present appeal are that the appellants are engaged in the manufacture of Motor vehicles. In terms of Notification No. 162/86, dated 1-3-1986 as amended, saloon cars classifiable under Chapter Heading 87.03 are eligible for a concessional rate of duty if they are required for use solely as taxis and the manufacturer furnishes a certificate from the State Transport Authority within 3 months from the date of clearance to the effect that such saloon cars have been registered for use solely as taxis. The appellants in respect of certain clearances where they were experiencing some difficulty discussed the matter with the concerned departmental authorities and evolved a procedure that if the taxis registration certificates were not received within 3 months period, they would suo motu make debit entry in the PLA for the differential duty and intimate the same to the Department. Subsequently whenever the requisite documents relating to registration of vehicles as taxis are ready, the appellant obtained these documents and filed the same with the Department in order to avail concession even though 3 months period indicated in the Notification No. 162/86 as amended had expired. The appellants also filed a formal request for condonation of delay in submitting the registration documents. During the period April, 1992 to June, 1992, the appellants had cleared 122 vehicles on payment of concessional rate of duty. Since the taxi registration documents were not received within 3 months period, the appellants debited the balance duty due suo motu and after the receipt of the taxi registration certificate, they submitted the related taxi registration documents in the month of September, 1992. Duty was debited suo motu by them. On receipt of the taxi registration documents and the extension of time for submission of such certificates/documents by the Asstt. Collector, the appellants filed the refund claims. The Department alleged that the refund claim was filed only on 27-8-1993, therefore, the claim was hit by limitation of 6 months provided under Section 11B of the Central Excise Act, 1944 and rejected the refund claim of the appellants. In appeal, the ld. Commissioner of Central Excise (Appeals) also rejected the refund claim of the appellants on the ground that they were time barred and hence the appeal before us.
3. Shri V. Sridharan, the ld. Advocate appearing for the Appellants submits that there was exchange of correspondence between the Appellant and the Department for evolving a procedure in cases where taxi registration certificates were not available within the period of three months. The ld. Counsel submitted that the Department was informed that in case the RTO's certificate registering the vehicle as Taxi was not received in time, and if within three months, the proof of registration was not received, the balance duty of 30% shall be debited. The ld. Counsel also submitted that though the issue was again taken up with the Asstt. Collector intimating him that his order regarding the debit of duty within 3 months does not provide relief to the customers who could not submit the documents within the stipulated time period for some reasons beyond their control and for whom delay in submission of documents is condoned by the Asstt. Collector. The Asstt. Collector was, therefore, requested to amend the order to read as 'submission within 3 months or such extended period allowed from the date of the clearance from factory. The Asstt. Collector was also requested for an order that differential excise duty need not be deposited until a final decision for condonation of delay is available; that it was pointed out to the Asstt. Collector that by mistake the appellants had debited the differential duty in respect of certain vehicles where the documents of registration as taxi were received on last date; as also in respect of certain cases where delay in filing the certificate of registration as taxi has been condoned; that the differential duty has been wrongly debited in such cases; that it was also pointed out that the appellants had filed the refund claim claiming differential duty debited by them in respect of the vehicles cleared under the aforesaid circumstances; that the appellants will also be filing the refund claims in future in respect of cases of similar nature, the refunds may kindly be granted by allowing the credit in RG 23A Part-II account and that the appellants intending to have paid the differential duty as they had followed the conditions prescribed under Notification No. 162/86. The ld. Counsel submitted that regarding refund claim, amounting to Rs. 33,82,652.42, the Department by their letter dated 4-7-1994 informed the appellants that 'the refund claim under reference filed by you in this office has been examined by the concerned Range Office as well as this office which is broadly in order and can be sanctioned if M/s. Maruti Udyog Limited, Gurgaon submits the proof of having disbursed the differential duty to the Customers as per condition No. 3 of the Notification No. 64/93 along with the copies of relevant GF Is duly endorsed checked by the concerned Range Superintendent at the time of sanction of the refund claim.' The ld. Counsel submitted that this letter is a clear sanction of the refund claim and, therefore, the adjudicating authority had travelled beyond the scope of the Show Cause Notice in view of the clear finding given in the letter dated 4-7-1994 of the office of Asstt. Collector.
4. The ld. Counsel submitted that the Asstt. Collector condoned the delay in respect of 111 vehicles on 19-8-1993 and in respect of the remaining vehicles did not condone delay and that in respect of 108 vehicles, the appellants had filed the refund claim on 27-8-1993. The ld. Counsel submitted that once the procedure was evolved for filing the refund claims, the date for limitation should be counted from the date of condonation of the delay. The ld. Counsel submitted that the Appellants are not filing the refund claims under Section 11B, but were filing the refund claim under the provisions of Notification No. 162/86. He submitted that in all these cases, though the papers regarding taxi registration documents have been filed to the Department beyond the period of three months stipulated under Notification No. 162/86, but the date of filing the taxi registration documents is either before the date of suo motu payment of the amount equal to the balance differential duty or is within six months from the date of suo motu debit in PLA. He argued that if the date of forwarding the papers of taxi registration is taken as the date of the claim, under Section 11B then, it is well within the limitation period of six months provided under Section 11B; that in the last of the appellant's letter dated 21-1-1993, it has been intimated that they will be filing refund claims in future in respect of the cases of similar value and that these refunds may kindly be granted. The ld. Counsel pleaded that in the facts and circumstances of the case, the date of forwarding the taxi registration document alone would constitute the date of staking the refund claims. In view of the fact that the purpose of forwarding the taxi registration document to the Department is only to make the claim for extending the benefit under Notification No. 162/86. He, therefore, submitted that the date of filing the taxi registration documents would amount to staking the refund claim and that the limitation under Section 11B would stop running against the appellant after that date. In support of his submissions, the ld. Counsel cited and relied upon the decision of the Tribunal in the case of Sirpur Paper Mills Ltd. reported in 1984 (15) E.L.T. 455. The ld. Counsel also referred to the decision of this Tribunal in the case of Amrit Paper Mills reported in 1991 (54) E.L.T. 293. Reference was also made to the decision of the Supreme Court in the case of Mafatlal Industries Ltd. reported in 1997 (89) E.L.T. 247. The ld. Counsel also referred to the decision of this Tribunal in the case of Collector of C.E. Bhubaneswar v. Life Batteries Pvt. Ltd. vide Tribunal's Order No. 13/89-B1, dated 9-11-1989 as also to the decision of this Tribunal in the case of Rajasthan Glyoxal Ltd. v. CCE, Jaipur in its Order No. 524-90-C, dated 22-5-1990. The ld. Counsel submitted that the case of the Appellants was fully covered by the ratio of the decisions cited above and, therefore, prayed that the appeal may be allowed.
5. Shri P.K. Jain, the ld. SDR appearing for the respondent Commissioner, submits that a reference has been made to the correspondence exchanged between the Asstt. Collector and the Appellant. He submits that in the letter relied upon by the Appellant, the Asstt. Collector had made it very clear that the vehicles said to be cleared as Taxis should be against the Certificate issued by the Road Tax Officer for Taxi and that the GP Is should clearly indicate that it will be used as Taxi; that the Asstt. Collector had further directed that in case proof of registration as taxi was not furnished within 3 months the appellant shall deposit the balance duty of 30% by making debit entry in their PLA. The ld. DR submitted that the appellants were further informed that in case a vehicle was cleared as a Taxi, but registration documents were not furnished within 3 months, concessional rate of duty was not applicable and that the appellants will have to debit the differential duty on or before the expiry of six months. The ld. SDR submitted that the appellant had intimated to the Asstt. Collector that they would furnish taxi registration documents within 3 months and that in some cases certificate was being submitted beyond a period of three months and the documents were being forwarded for condonation of delay; that in the last para it has been intimated in their letter dated 21-1-1993 that they had filed the refund claims and that it did not pertain to future claims.
6. On the question of sanction of refund as communicated by letter dated 4-7-1994, the ld. SDR submitted that this letter had been sent for Asstt. Collector and that nobody other than the Asstt. Collector could sanction the refund claim. Therefore, this letter of 4th July, 1994 could not be treated as a sanction of the refund claim as it has not been sanctioned by the appropriate officer. The ld. DR submitted that all cases of refund are required to be filed in the proper forms; that in the instant case, refund claims in the prescribed formats were filed on 27-8-1993 in respect of 108 numbers of vehicles duty on which was paid from April, 1992 to June 1992. Thus the refund claim was filed beyond a period of six months. The ld. SDR submitted that there is no provision in the Central Excise Rules where a refund claim can be accepted if filed beyond a period of six months unless there is a provisional assessment or payment of duty is under protest.
7. The ld. SDR also submitted that the case law cited by the Appellant is not directly applicable to the facts and circumstances of the present case and since the case law can be distinguished, he prayed that the Appeal may be rejected.
8. Heard the submissions of both sides. Perused the evidence on record as also the case law cited by the appellants. We note that this Tribunal in the case of Sirpur Paper Mills Ltd. (supra) in paragraph 4 held :
"4. The reasoning of the Asstt. Collector are as unusal as they are disingenuous. He himself says that by a letter dated 19-9-1973 the manufacturers requested orders to reclassify the clearance under Tariff Item 17(3) to enable them to claim refund, because in the classification list approved from 1-3-1973, maplitho-paper of 85 gsm and above was classified as cartridge paper assessable under 17(2). A dispassionate view would have told him that this was a claim for refund and that it was in time. We do not know the authority for saying that maplitho paper of 85 gsm and above is indistinguishable from cartridge paper. A maplitho paper is a paper generally used in printing maps, one of whose characteristics is foldability i.e. they should have good folding qualities and must fold without tearing, they are frequently given animal sizing. Sometimes they are imparted high wet strength, meaning that they retain much of their original strength even when wet. They are not the same thing as cartridge paper and are never known to have been understood or accepted to be indistinguishable or interchangeable with cartridge paper. We accordingly set aside the order and direct consequential re-assessment and refund of the duty wrongly recovered."
9. We note that the concessional rate of duty under Notification No. 162/86 was available on Saloon Cars if they were used as taxis for availing the benefit under this notification. It was provided that the Registration documents of the Saloon Car as Taxi should be produced within 3 months or within further extended period if the delay in submission of the Registration papers is condoned by the Asstt. Commissioner concerned.
10. The main plea of the appellant is that the date of filing the request for condonation of delay should be treated as date for filing the refund claim. Examining the facts of the case before us in the light of the decision cited above, we find that the request for condonation of delay in filing the registration documents actually is made only to claim for refund in as much as the lower rate of duty is admissible only when the car is registered as a taxi. The Tribunal in the case cited supra had held that 'by a letter dated 19-9-1973, the manufacturer requested orders to reclassify the clearance under Tariff Item No. 17(3) to enable them to claim refund because in the classification list approved from 1-3-1973, maplitho paper of 85 gsm and above was classified as cartridge paper assessable under Item 17(2). A dispassionate view would have told him that this was a claim for refund and that it was in time.' In the instant case, we find that the request for condonation of delay was filed on 19-6-1993 in respect of 122 vehicles and the delay was condoned by the Asstt. Collector on 20-7-1993. A plain reading of the notification together with the provisions clearly says that any refund claim will be admissible only if the delay is condoned. The condonation of delay in itself has no meaning if it does not cover the question of refund of duty paid. Therefore, for harmonious construction of the provision of Notification No. 162/86, it becomes clear that the refund claim can be filed only after the delay in submission of the registration documents is condoned and, therefore, for purposes of this notification, the date of condonation of delay is very material and significant as is held by the Tribunal in the case of Sirpur Paper Mills. In the instant case, we note that refund claim was filed within 38 days of condonation of delay. This does not appear to be an unreasonable period.
11. The ld. Counsel, also referred to the decision of this Tribunal in the case of Amrit Paper Mills Private Ltd. (supra). Paragraph 4 of the Tribunal's decision is reproduced below :
"4. I have considered the arguments. The case turns on whether their letter dated 17th May, 1984 addressed to the Superintendent wherein they had specifically pointed out the excess payment made by them and requested for refund of the said excess paid amount would constitute a valid refund claim. As certain cases have been cited as supporting such a proposition, I- have gone through the same. I find that in the cases relating to K.B. Foams Pvt. Ltd., Balaram Chini Mills, New Jatiaga Valley Tea Estates Ltd., Nahorjan Tea Co., Neelamalai Tea/Coffee Estates & Indus., the refund arose as a result of applying exemption Notification No. 198/76 on account of excess production incentive. The Assistant Collector's prior decision regarding excess production and date of crossing the excess production was necessary. The date of the Assistant Collector's decision communicating the said information to the assessee has been held to be the crucial date for deciding whether the refund claim had been filed in time. Such a criterion is not relevant in the present context. However, in Balarampur Chini Mills Ltd. case the Tribunal went into the question whether a letter dated 28-3-1976 written by the appellants to the Appellate Collector submitting a revised claim (after their Rebate claim on excess production filed on 19-6-1975) with copy to the Assistant Collector and found substance in the argument of their Counsel that it met the requirements of Rule 11 of the Central Excise Rules. The subsequent decision of the Tribunal in the case of GTC 1989 (42) E.L.T. 29 is more appropriate to the present case. There the assessee had urged by a letter dated 19-4-1974 to clear goods on payment of duty at the rates proposed in the Finance Bill. The price list remained unapproved. The goods were cleared on payment of higher amount of duty. The formal refund claim was filed on 30-7-1975. The assessee was deemed to have stated his claim for refund on 19-4-1974 and the formal claim dated 30-7-1975 was regarded as in continuation of the initial claim. In another case concerning Sirpur Paper Mills decided by the Tribunal reported in 1984 (15) E.L.T. 455, it was held that the letter by which the assessee had requested for orders reclassifying their product Maplitho paper under Tariff Item 17(3) as against the original classification under Item 17(2) so as to enable them to claim refund of the excess amount paid by them constituted a claim was for a refund. Applying the same test to the present appeal. I find that the appellants had staked a claim vide their letter dated 17-5-1984.1 am inclined to give them the benefit of doubt when they state that they were informed by the departmental officers that their claim vide the said letter would be disposed of while finalising the RT 12 assessment and they would get the credit in their PLA in terms of Rule 173-1. Only when the RT 12 was belatedly completed after nearly three years did they come to know that the said credit was not given and they would be entitled to refund if they had filed a refund claim in time. Only then did they file a formal refund claim. I hold that they had already staked their claim vide their letter of 17-5-1984 and the formal claim filed by them after the completion of the RT 12 in 1987 was not a fresh claim but was in continuation of the original claim already lodged in terms of their letter dated 17-5-1984. The learned Consultant has also cited the East Regional Bench decision in the case of Balaji Fasteners - 1990 (46) E.L.T. 543 and Oriental Insulated Conductors Pvt. Ltd. 1990 (47) E.L.T. 63 where it was held that the time limit for refund will run from the date of finalisation of the RT 12 when alone assessment is completed and duty is paid and not the date of debit to the personal ledger account by the assessee of the self-assessed duty and that in terms of Rule 173-1 the grant of Refund is automatic with the completion of the RT 12 and no separate refund claim is due. If the said ratio is followed in the present case as contended by the appellants, the assessment by the proper officer was completed only in 1987 and the refund claim filed thereafter was not hit by time bar. The claim was rejected as time barred going by the date of payment of duty by the appellants by debit to their PLA. As, however, there are contrary judgments of the Tribunal that the date of payment of duty for deciding limitation for the purposes of Section 11B would be the date of debit of the PLA and not the date of completion of the RT 12 return by the proper officer, I would not like to apply the ratio of the Tribunal decisions in Balaji Fasteners and Oriental Insulated matters, particularly as no adjustment in the PLA by assessing the correct duty amount in the RT 12 was ordered by the Superintendent while completing the RT 12 assessment and the appellants also did not press for the same during the original proceedings. However, I find that the specific claim staked by them for the application of lower rate of duty and the payment of refund due to them on account of the excess payment made by them will come to their aid since the formal refund claim subsequently made by them consequent to the remarks of the Superintendent while completing the RT 12 assessment cannot be treated as a fresh claim but as a continuation of the claim clearly staked by them vide their letter dated 17-5-1984. The fact that it was addressed to the Superintendent and not to the Assistant Collector cannot invalidate it. In the circumstances, I allow the appeal and set aside the impugned order-in-appeal. The appellants would be entitled to the consequential refund."
In this case, the Tribunal observed that "specific claim staked by them for the application of lower rate of duty and the payment of refund due to them on account of the excess payment made by them will come to their aid since formal refund claim subsequently made by them consequent to the remarks of the Superintendent while completing the RT 12 assessment cannot be treated as a fresh claim but as a continuation of the claim clearly staked by them vide their letter dated 17-5-1984. The fact that it was addressed to the Superintendent and not to the Asst. Collector cannot invalidate it." In the instant case, we find that in their letter dated 21-1-1993 addressed to the Asstt. Collector, the appellants wrote, "we will also be filing refund claims in future, in respect of the cases of similar value these refunds may kindly be granted by allowing us the credit in RG 23A Part II." We also note that by letter dated 4-7-1994, the office of the Asstt. Collector informed the appellants that, "In this regard, it is to inform you that the refund claim under reference filed by you in this office has been examined by the concerned Range Office as well as by this office which is broadly in order, and can be sanctioned if M/s. Maruti Udyog Limited, Gurgaon submits the proof of having disbursed the differential duty to the customers as per condition No. 3 of the Notification No. 64/93 along with the copies of relevant GP Is duly endorsed checked by the concerned Range Superintendent at the time of sanction of refund claim." The letter clearly indicated that the letter dated 21-1-1993 was within 6 months from the date of payment of duty and was in the form of a claim for refund and more or less similar to the one accepted by the Tribunal as a claim for refund in their order cited in the preceding paragraph.
12. Reference was made to the case of Mafatlal Industries Limited v. Union of India decided by the Apex Court [reported in 1997 (89) E.L.T. 247]. The ld. Counsel referred to Paragraph 86 of this ruling to clarify that when the duty is paid under the orders of Court pending an appeal/reference/writ petition, it will certainly be a payment under protest; in such a case, it is obvious, it would not be necessary to lodge the protest as provided by Rule 233B. The ld. Counsel submitted that they had paid duty under the orders of the Asstt. Collector who is a quasi-judicial authority and, therefore, the payment may be treated as payment under protest as held by the Apex Court in their ruling.
13. The ld. Counsel also referred to the judgment of this Tribunal in the case of CCE v. Life Batteries Pvt. Ltd. In this case, the Tribunal had held that, "Thus we find that it was not for the first time on 30-9-1980 that the respondents claimed the benefit of exemption under the notification. They had already staked their claim for the exemption within 3 days of the issue of the notification and at the beginning of the financial year 1978-79 itself. If the department had determined their claim then without delay, there would have been no need for the respondents to first pay the duty and then claim its refund. The delay was on the part of the department. The respondents having made their claim for the exemption well in time, cannot be punished because of the department's delay. What they did on 30-9-1980 was not making a new refund claim but only quantifying the amount for the claim already made. This quantification was only consequential to the claim already made in time and, as already stated above, the need for it arose because the department sat over the initial claim for exemption made by the respondents within 3 days of issue of the exemption notification and in advance of the start of the relevant financial year 1978-79. In the circumstances, the refund claim made by the respondents on 30-8-1980 is held to be not hit by time bar of Rule 11. Since on merits the Asstt. Collector has already held the claim as admissible vide his de novo order dated 14-12-1981/9-2-1982, there is no ground to deny the refund to the respondents." In the instant case, we find that the appellants had paid differential duty suo motu in accordance with the procedure settled between the Assessee and the Department. We also note that the office of the Asstt. Collector had held the claim as admissible in terms of their letter dated 4-7-1994. We also note that in the notification allowing concessional rate of duty had a clause for condonation of delay for submission of the registration certificate. All this meant that concessional rate could be denied only if the delay in submission of Registration certificate was not condoned. Thus, the facts in the instance case and those dealt with by the Tribunal in this case are similar and, therefore, the ratio of the decision will apply to the facts of the present case.
14. The ld. Counsel also referred to the judgment of this Tribunal in the case of Rajasthan Glyoxal Limited. In this case the department had rejected the refund claim on point of limitation mainly on the ground that there was no specific request for refund of duty in the said letter. The Tribunal held that the assessee claimed exemption from payment of duty on Glyoxal 40% mentioning Notification 55/75 or to consider a NIL rate of duty for this product. In other words liability to pay duty was questioned which amounted to a protest. The Tribunal observed that this view is strengthened by the decision of the Apex Court in the case of India Cements Ltd. v. CCE 1989 (41) E.L.T. 358 (S.C.).
15. In the instant case, we find that a procedure was mutually agreed between the Department and the Assessee in so far as applicability of Notification No. 162/86 was concerned. The Assessee was following the procedure and had intimated to the department that they may be filing the refund claim in future also.
16. We also note that this Tribunal in the case of K.B. Foams Private Limited 1985 (19) E.L.T. 476 had held that any communication from which it can be concluded that Assessee is contesting the payment of duty and making a claim for refund has to be construed as application for refund under Section 11B. In the instant case, we find that the claim for refund of duty was staked on 21-1-1993 and, therefore, in terms of ratio of the judgment in the cited case, this letter can be treated as a claim for refund. Formal claim, however, can be submitted only after the delay was condoned.
17. In the instant case, we know that a detailed procedure was evolved by mutual discussion and exchange of correspondence. We note that the notification required that certificate of registration as taxi should be submitted within a period of 3 months. The notification further stipulated that this time can be extended by the Asstt. Collector. Thus, there was built in provision in the notification itself which required that the claim can be filed only after the condonation of delay in submission of the certificate of registration as taxi. In the instant case we note that the claim for refund was made by the assessee in their letter dated 21-1-1993. We also note that the claim for refund was filed within a short period after the condonation of the delay. We find that letter dated 21-1-1993 was within six months from the date of payment of duty. If this letter is treated as a claim for refund, then the refund claim is within the time. We also note that in the letter dated 4-7-1994, office of the Asstt. Collector had found the claim in order and there was no allegation in this letter about limitation. We also note that since there was a stipulation in the notification for extension of time, then in that view of the matter, the period of six months should start from the date the delay in submission of the Registration certificate as taxi is condoned. In the instant case the delay was condoned on 19-8-1993 and the formal refund claim was submitted on 27-8-1993 in respect of 108 Nos. of vehicles. Thus, the formal refund claim was filed within a very short period,
18. Having regard to the above discussions and findings and the case law analysed as above, we hold that the refund claim is not hit by limitation. However, the refund will be admissible subject to the ruling of the Apex Court in the case of Mafatlal Industries Limited 1997 (89) E.L.T. 247.