Customs, Excise and Gold Tribunal - Delhi
National Winders vs Collector Of Central Excise on 5 July, 1994
Equivalent citations: 1995(80)ELT614(TRI-DEL)
ORDER G.R. Sharma, Member (T)
1. This reference application has been preferred by M/s. National Winders against Final Order No. A/38/92-NRB, dated 7-1-1994 passed by the Tribunal. The Tribunal in its order had held:
"6. Claim for refund can arise only when duty is paid. Now whether payment of duty herein the proviso means the payment of duty by the manufacturer or does it mean the payment of duty by the claimant? If we presume that in the proviso any duty paid under protest refers to the duty paid by the assessee then there can be no dispute that any claimant can claim refund without any time limitation. However, if we presume that claim for refund is invariably connected with the payment then any duty that has been paid their protest will refer to the duty paid under protest by the claimant. The point for examination in such cases will be whether the claimant had lodged any protest at the time of payment of such duty. I also observe that the relevant date for counting the period of six months is the date of purchase in the case where the claim has been preferred by a person other than the manufacturer. If this proviso is read with the main provision of Section 11B, it clearly shows that if the relevant date happens to be a date other than the date of payment of duty or date of clearance of the goods then the intention of the legislature appears to be clear that the elimination of six months shall apply to persons other than the manufacturer. Had it not been so then the question of counting the six months' period from the date of purchase of the goods by such person would have not been provided for in the statute. Once a provision has been made that the relevant date for counting the period of six months will be from the date of purchase of the goods, the intention of the legislature is very clear and will apply strictly in cases where the claimant of refund is a person other than the manufacturer. I, therefore, hold that in the case of claimants of refund under Section 11B by persons other than the manufacturer, the proviso reading 'Provided further that the limitation of six months shall not apply where any duty has been paid under protest' shall not apply.
7. Examining the claims of refund in the light of findings referred to above, I find that the claim has been made much after six months from the date of purchase of the goods. I, therefore, hold that the refund claim is barred by time and therefore the appeal in rejected."
The applicant has submitted detailed statement of the case in Annexure A and the question of law in Annexure B which are reproduced below for the sake of convenience :-
ANNEXURE 'A' - STATEMENT OF THE CASE "M/s National Winder, Varanasi (Proprietors M/s. Sah Electrical Industries Pvt. Ltd.) (hereinafter referred to as the applicants) are, inter alia, engaged in the various models of electric fans.
2. The applicants have entered into an agreement with M/s Vikas Engineering, Lucknow (for short Vikas), whereby Vikas have manufactured and sold electric oscillating table fans under the brand name "Ginni' to the applicants during the period from 10-10-1990 to 6-5-1991. The aforesaid variety of fans have been sold exclusively to the applicants. Initially, Vikas paid duty on these electric oscillating table fans on the basis of the price agreed to between the applicants and Vikas.
3. The Asstt. Collector of Central Excise, Lucknow passed Order-in-Original dated 25-9-1990 holding that the assessable value of the fans manufactured and cleared by Vikas to the applicants should be the price at which the applicants have sold fans to their customers. Vikas contested this order by way of appeal to Collector (Appeals) - who passed Order-in-Appeal dated 29-4-1991 by setting aside the said order of the Asstt. Collector.
4. During the period after the issue of Order-in Original dated 25-9-1990 and before the issue of Order-in-Appeal dated 29-4-1991, Vikas were paying duty under protest on the price at which the fans were sold by the applicants.
5. Provisions to the aforesaid Order-in-Appeal (sic) holding that Vikas who has filed the refund claim had passed on the burden of excess excise duty to their buyer.
6. The applicants who were the sole buyer of fans from Vikas during the aforesaid period have also filed an application for the refund of an amount of Rs. 1,80,856/- vide refund application dated 3-3-1992. The applicants contended that the price at which Vikas have sold the goods to the applicants has been held up to be the assessable value for the purpose of payment of duty and inasmuch as during the period from 10-10-1990 to 6-5-1991 duty was paid by Vikas on the higher assessable value and such duty was collected from the applicants, the refund of the excess duty paid has to be made to the applicants. In support of the refund claim, the applicants have also submitted the invoices by which the goods purchased from Vikas were sold by the applicants. The applicants have also submitted a certificate from Chartered Accountant stating that they have not passed on the burden of excise duty to their customers.
7. The Asstt. Collector of Central Excise passed Order-in-original No. Refund/33/92, dated 14-12-1992. He held that the applicants' claim was not hit by limitation of six months in view of the fact that the duty was paid under protest and that the applicants have not passed on the burden of excess excise duty to their customers. However, the Asstt. Collector held that the applicants would be eligible for the excess excise duty paid by Vikas through PLA and the balance amount which was paid by Vikas through RG 25A Pt II by availing MODVAT credit of the duty paid on the inputs cannot be sanctioned. Accordingly, an amount of Rs. 84.173/- out of Rs, 1,80,856/- was sanctioned by the Asstt. Collector to the applicants. The Asstt. Collector disallowed the balance amount of Rs. 96,683/-.
8. The applicants filed an appeal to the Collector (Appeals) against the aforesaid Order-in-Original dated 14-12-1992 contending that even the balance amount of Rs. 96,683/- would be payable to them. The Collector (Appeals) vide Order-in Appeal dated 13-5-1993 set aside the Asstt. Collector's order and remanded the matter for de novo decision.
9. In the meanwhile, the Collector of Central Excise, Allahabad reviewed the aforesaid Order-in-original dated 14-12-1992 under Section 35E on the ground that the refund claim filed by the applicants who are the customers of Vikas, is barred by limitation under Section 11B(1) in view of the fact that the same was beyond six months after the date of purchase of fans from Vikas. In other words, the review of the Order-in-original was made only on the ground that the second proviso to Section 11B(1) is not applicable to the refund claims made by the persons other than manufacturers.
10. The Collector of Central Excise (Appeals) passed Order-in-Appeal No. 104-CE/ALLD/93, dated 21-8-1993. In this order, the Collector (Appeals) held that even though a person other than a manufacturer can file the refund claim under the new provisions of Section 11B, the second proviso to Section 11B(1) would apply only in a case of refund claim filed by the manufacturer since the concept of payment of duty under protest in terms of Rule 233B is applicable only in respect of manufacturer and not in respect of consumer. Accordingly, the Collector (Appeals) held that the refund claim filed by the applicants was barred by limitation under Section 11B.
11. Aggrieved by the aforesaid order, the applicants filed a stay application and an appeal before the Appellate Tribunal. This stay application and appeal were numbered as E/Stay/1485/93-NRB and E/2657/93-NRB respectively. The applicants received a hearing notice only for the stay application. The stay application was heard on 26-11-1993 to consider as to whether the applicants were required to pre-deposit Rs. 84,173/- consequent to the aforesaid order of the Collector (Appeals). The orders on stay application were reserved. Subsequently also, no hearing was fixed on the main appeal.
12. After the hearing on the stay application, the Tribunal has passed Stay Order No. 8/34/94-NRB and Final Order No. A/38/94-NRB. In this order, the Tribunal disposed of the appeal itself by holding that the second proviso to Section 11B which provides that the limitation of six months shall not apply where duty has been paid under protest, will not apply to the refund claim filed by persons other than the manufacturer. The basic reasoning of the Tribunal in holding in the aforesaid manner is that under Section 11B relevant date has been provided in respect of a refund claim by the person other than the manufacturer as the date of purchase."
ANNEXURE 'B' - QUESTION OF LAW
1. Whether in the facts and circumstances of the case, the Tribunal was correct in holding that the refund claim filed by the applicant was barred by limitation under Section 11B, especially when the duty was admittedly paid under protest?
2. Whether the second proviso, to Section 11B(1), which provides that the limitation of six months provided under Section 11B(1) shall not apply to any refund claim where any duty has been paid under protest, could be applied only to the refund claim filed by the manufacturer and not by any other person than the manufacturer especially when in terms of Section 11B(1) any person including person other than a manufacturer can file a refund claim? (sic)
3. Whether in the facts and circumstances of the case, the Tribunal was correct in holding that the second proviso to Section 11B(1) provides that the limitation of six months would not apply where duty has been paid under protest will not apply to the refund claim filed by persons other than manufacturer whereas the Section 11B(1) itself provides that a refund claim can be filed by the manufacturer/assessee and also by any other person other than manufacturer/assessee?
4. Whether in the facts and circumstances of the case the Tribunal was not in error in holding that in respect of the refund claim filed by the persons other than manufacturer, the period of six months from the date of purchase alone would apply irrespective of the fact that the duty was paid under protest?
5. Whether in the facts and circumstances of the case, the Tribunal was correct in holding that the second proviso to Sub-section (1) of Section 11B, would apply only to the refund claim filed by the manufacturer on the ground that in respect of refund claim filed by others the period of six months from the date of purchase alone would apply, whereas there are also relevant dates prescribed under the said Section in respect of refund claim filed by the manufacturer?"
2. As the reference application was allowed in view of the fact that the question of law is involved and there is no authoritative judgment of the Hon'ble Supreme Court or any High Court or the Tribunal on the subject, therefore it was decided to refer the matter to the Hon'ble High Court. Notice is hereby given to the applicant as well as the respondent so as to go through the Reference statement and point out if any omission still remains which needs to be included in the statement of the case to the Hon'ble High Court. Arguments and submissions, if any, to be made, may be submitted in writing and arguments to be advanced in support of the contentions shall be taken up on 29-7-1994.
Sd/-
G.R. Sharma Member (T) Dated : 4-7-1994 ORDER Heard both sides. Both Ld. Advocate and Ld. DR submitted that the question of law has been correctly framed and nothing more has to be added and there is no omission.