Customs, Excise and Gold Tribunal - Delhi
Mcleod Russel (India) Ltd. vs Collector Of Central Excise on 12 September, 1986
Equivalent citations: 1986ECR612(TRI.-DELHI), 1987(29)ELT272(TRI-DEL)
ORDER V.T. Raghavachari, Member (J)
1. All these appeals were heard together since they involve a common issue. The appellants M/s. McLeod Russel (India) Ltd. are owners, amongst various Tea Estates, of three Tea Estates by name of Chuapara Tea Estate, Jainti Tea Estate and Central Dooars Tea Estate. They had submitted their declaration on 12-6-1978 in respect,of exemption under notification No. 198/76-CE., dated 16-6-1976. Orders for fixation of their basic clearances were passed by the Assistant Collector on 2-1-1979. Subsequently they filed four refund claims as follows :-
(1) Dated 17-7-1979 for the year 1977-78 in respect of Chuapara Tea Estate;
(2) Dated 16-7-1979 for the year 1977-78 in respect of Jainti Tea Estate;
(3) Dated 3-9-1979 for the year 1978-79 in respect of Chuapara Tea Estate; and (4) Dated 26-11-1979 for the year 1978-79 in respect of Central Dooars Tea Estate.
The concerned Assistant Collector dismissing all these refund claims under different orders on the ground that they had been filed beyond the period fixed under Rule 11 of the Central. Excise Rules (as it stood then) calculated from the dates of payment of duty. These orders were upheld by the Appellate Collector. The abovesaid (1) to (3) claims were dealt with and disposed of under one order of the Appellate Collector and claim No. 4 under a separate order. The appellants had preferred two revision petitions against the said orders. On transfer to this Tribunal, these revision petitions were numbered as E-425/82-D and 429/82-D. Subsequently in accordance with the rules of this Tribunal two supplementary appeals were filed with reference to the order-in-appeal in E-425/82D and the same have been numbered as E-2052 and 2053/86-D'.
2. We have heard Shri V. Lakshmikumaran, Advocate for the appellants and Shri K.C. Sachar, JDR for the Department.
3. Shri V. Lakshmikumaran relied upon the decision of this Tribunal in George Williamson (Assam) Ltd. v. Collector of Central Excise, Shillong (1985 Vol. 20 ELT 389) which in turn relied upon two earlier decisions [Ne Jatiaga Valley Tea Estates Ltd., Calcutta v. Collector of Central Excise, Shillong (1983 ELT 1274) and Neelamalal Tea <5c Coffee Estate and Industries Ltd. v. Collector of Central Excise, Madras (1983 ELT 2426)]. He pointed out that it has been held in these decisions, dealing with situations similar to the one in the present appeal, that it would be the date when the declaration required under notification No. 198/76 was filed that would be relevant as the date on which the claim for refund was staked and therefore if refund claim would not be barred with reference to that date the actual refund claims that were subsequently filed (after the declaration had been approved by the Assistant Collector and the base clearances had been fixed by him) should not be rejected on the ground that the said claim was made beyond the period fixed under Rule 11 calculated from the date of payment of duty. He submitted that the same principles should be adopted in the present appeal also and applying the said principles relief should be granted to the appellants to the extent permissible.
4. He pointed out that in respect of claims (1) & (2) mentioned earlier (dated 17-7-79 and 16-7-79) they related to the year 1977-78 ending with 31-3-1978 and therefore the claims related to the period even prior to the approval by the Assistant Collector of the declaration and fixation of base clearance on 2-1-1979. He, therefore, submitted that the claims in the said two instances should be allowed to the extent they fall within 6 months proceeding 12-6-1978 (the date of declaration) and hence refund should have been ordered with reference to the period 12-12-1977 to 31-3-1978. In respect of third instance he claimed that the same related to the year 1978-79 ending with 31-3-1979 and no part of the claim would be barred by limitation. The fourth claim (dated 26-11-1979) related to the year 1978-79 refund having been claimed in respect of period 31-3-1978 to 31-3-1979. Shri Lakshmikumaran submitted that no part of this claim should also be deemed to have become barred by time. When it was pointed out to him that at any rate by 2-1-1979 the base clearance had been approved by the Assistant Collector and hence on and after that date the appellants would have known whether they are liable to pay duty at the normal rate or at the exempted rate and if in spite of such knowledge they chose to pay at the normal rate they will be bound by the normal period of Limitation calculated from the date of actual payment of duty in respect of that refund claim and could not rely upon the date of declaration (in terms of the rulings relied on by him). Shri Lakshmikumaran submitted that all such payments, whether made before the date of approval of base clearance by the Assistant Collector or thereafter, should be considered to have been payments under protest and hence there should no question of period of limitation in respect of the claims for refund thereof.
5. Shri Sachar on the other hand contended that even applying the principles of the rulings relied on by the appellants they can be deemed to have claimed entitlement to exemption from the date they filed their declaration i.e. 12-6-1978, and hence their claim for refund can relate only to payments made after that date and not to any payments made before that date. Therefore, in effect he contended that the appellants were not entitled to any refund at all for any period prior to 12-6-1978, since they had claimed benefit Of exemption by filing the declaration on 12-6-1978 only. He submitted that in the Neelamalal Tea and Coffee Estate & Industries Ltd.'s case there is a reference to the assessees having filed a classification list claiming the benefit of exemption under notification No. 198/76 and that is why their claim could be considered though the declaration itself was filed much later. Shri Sachar submitted that the appellants before us had not filed any such classification list and relied upon their declaration dated 12-6-1978 only and therefore their claim cannot in any event relate to a period before 12-6-1978. But, as pointed out by Shri Lakshmikumaran, there is no evidence at all on this question whether the appellants had or had not claimed benefit of the exemption in any classification list filed by them at the commencement of the year. If, in the absence thereof, the Department wants to raise such a contention to deny relief to the appellants on that basis in spite of the decisions of the Tribunal cited by the appellants it was for the Department to have produced the classification list to establish that no exemption had been claimed under the notification in the said classification lists. Though Shri Sachar claimed that the Department should be given an opportunity to produce such lists hereafter, we were not inclined to grant any such request, taking into consideration that the claims are already over 7 years old.
6. Shri Sachar further made reference to the decision of this Tribunal in Nagpur Re-Rolling Mills v. Collector of Central Excise, Nagpur (1986 Vol. 25 ELT 143). We find that this decision merely followed the earlier decisions of this Tribunal cited supra in respect of limitation to be applied in refund claims depending upon the fixation of base clearances in terms of notification No. 198/76, dated 16-6-1976.
7. We are, therefore, of the opinion that the principles laid down by this Tribunal in the earlier decisions will have to be applied in these appeals also and relief will have to be moulded in terms of the said ratio. We, further note that in respect of payments made on and after 2-1-1979 the situation will be different since by that date the appellants had been made aware as to whether in respect of clearances after that date they were liable to pay duty at the normal rate or at the exempted rate. If in spite of the same they chose to pay duty at the normal rate their claim for refund in respect of such excess will have to be dealt with in terms of the period of limitation provided under Rule 11, calculated from the dates of payment of duty. The contention that even in respect of such payments, the payments should be deemed to have been made under protest cannot accepted.
8. Applying the above principles our decision in respect of each of the four claims above mentioned is as follows :-
(1) Claim dated 17-7-1979 : This claim relating to period upto 31-3-78 will have to be allowed in full.
(2) Claim dated 16-7-1979 : This claim also being for the year 1977-78 will have to be allowed in full.
(3) Claim dated 3-9-1979 : This claim relates to the period 1978-79 ending with 31-3-1979. The claim will have to be allowed so far as it relates to payment of duty upto 1-1-1979 and in respect of payments after 2-1-1979 claim will be barred for the period 2-1-1979 to 2-3-1979. The claim for the period 3-3-1979 to 31-3-1979 will be within time since the claim was filed on 3-9-1979 and so the refund for the period 3-3-1979 to 31-3-1979 will have to be allowed.
(4) The claim dated 26-11-1979 : This related to the period 13-11-1978 to 31-3-1979. The claim will have to be allowed for the period from 13-11-1978 to 31-3-1979 but rejected in respect of the period 3-1-1979 to 31-3-1979 as barred by time, since the refund claim was filed on 26-11-1979 only.
9. The four appeals are accordingly allowed to the extent indicated above and the order of the Appellate Collector would stand modified to that extent.