Customs, Excise and Gold Tribunal - Delhi
Southern Petrochemical Industries ... vs Collector Of Central Excise on 5 February, 1986
Equivalent citations: 1989(7)ECR390(TRI.-DELHI), 1986(24)ELT686(TRI-DEL)
ORDER K. Prakash Anand, Member (T)
1. This matter arises out of a revision application filed by the appellant against Order-in-Appeal No. 241/81 passed by the Appellate Collector of Customs and Central Excise, Madras, in A. No. 60/81 (Madras) Gr. II/C. No. V/14HH/6/81 dated 14-9-1981. On the setting up of this Tribunal, this revision application had been transferred here and is now being treated as an appeal before us.
2. Briefly the facts are that the appellants are the manufacturers of fertilizers assessable under Item No 14-HH of the Central Excise Tariff. The manufacturers were availing of procedure under Chapter VII-A. Under this procedure, the assessee is required to file a monthly return within seven days of the close of each month with the proper officer. The proper officer is required to assess the duty on the goods removed and to complete the assessment on the basis of information contained in the returns filed by the assessee. The duty is determined and paid by the assessee under Rule 173-F of the Central Excise Rules, 1944. This is required to be adjusted against the duty assessable by the proper officer under Rule 173-I. By Notification No. 65/80-CE dated 7-6-1980 Urea and Di-Ammonium Phosphate manufactured by the appellants were exempted from the whole of the excise duty leviable on them. The appellants state that this notification was not received in time by the Superintendent of Central Excise, Tuticerin, on the 7th June and he insisted on the applicant paying duty before clearing the goods, pending receipt of the notification. A return in Form RT-12 as required by Rule 173-Q was filed for the month of June 1980 on 5-7-1980 and this assessment was completed by the Superintendent of Central Excise, Tuticorin, on 22-8-1980. As per Section 11-B of the Central Excises and Salt Act (effective from 17-11-1980) any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date. The "relevant date" has been defined in the section to mean the date of adjustment of duty after final assessment in a case where duty is paid provisionally under the Act or Rules. The appellants in this case applied for refund of duty paid during the period. On 5-12-1980 the refund application in the prescribed form was addressed to the Assistant Collector through the Superintendent of Central Excise. The Assistant Collector of Central Excises. Tuticorin division rejected the application on the ground that it was barred by time since it reached his office only on 13-1-1981 and that by that date the period of six months prescribed under Section 11-B had expired. In appeal the Appellate Collector hold that the relevant date for purposes of time limit for claim of refund is the date of payment and not the date on which the duty paid was adjusted in the assessment and that the date for the receipt of the claim for refund pertinent to the issue of time bar is the date on which the Assistant Collector's office received the application. Accordingly, he also held the claim to be time barred.
2. The appellants have argued before us that the filing of the refund claim addressed to the Assistant Collector through the Superintendent was in accord with the existing practice. In this connection they have referred to a Trade Notice issued not by their own Collectorate but by the Central Excise Collectorate of Kanpur No. 206/1980 (All Excises No. 6/1980). This Trade Notice states that it has been brought to notice that filing of refund claims only with the Assistant Collector has put certain assessees in a disadvantageous position inasmuch as though the refund claims were filed by them within six months with the jurisdictional Superintendent, Central Excise, yet the limitation period of six months was calculated on the basis of the date of receipt of the claim by the Assistant Collectors resulting in the rejection of many claims has been time-barred. To obviate any hardship and safeguard the trade interests, it was stated that it had been decided that refund claims should be addressed to the Assistant Collector but could be lodged with the jurisdictional Sector Officer and that these will be deemed to have been lodged with the Assistant Collector when accepted by the Sector Officer or Range Officer on behalf of the Assistant Collector for the purpose of computing the time limit of six months under Section 11-B of Central Excises and Salt Act, 1944. The appellants have also cited a decision in the case of Shri Ambica Khandsari Udyog, Saharanpur v. Collector of Central Excise, Meerut-1985 (21) E.L.T. 281 (Tribunal). In the said case it was held that the Superintendent has to be considered as a part of the Assistant Collector's office. It is claimed that this decision fully covers the main point in dispute and if this is conceded then the appeal should be allowed on this ground alone. The appellants have also cited one other decision of the Government of India in the case of Auto and Metal Engineers reported in 1982 E.L.T. 478 (G.O.I.). Furthermore, it is stated that the assessment in their case was completed by the Superintendent of Central Excise, Tuticorin only on 22-8-1980 and that this was the date relevant for the purpose of the explanation of Section 11-B of the Central Excises and Salt Act, 1944. The appellants have emphasised that for the purpose of the time limit, what is relevant is the date on which the application is made to the Assistant Collector and that the date on which it is received by the Assistant Collector's office is not relevant. It is further urged that the lower authorities have failed to appreciate that the collection of duty on fertilizers after 7-6-1980 was without the authority of law and refund should have in fact been made by the Department suo motu. Further, it is stated that the appellants had in fact intimated to the Department that they were paying duty subject to claim for refund which was being made separately. In such a case the time limit under Section 11-B should not actually apply. On the issue of form of protest the appellants have specially emphasised the point that at the point of time relevant to this case there was no prescribed protest form for filing a protest and that this was introduced later in 1981.
3. Opposing the appeal, the learned Departmental Representative, has stated that the application for refund is time-barred not merely in terms of Section 11-B, but in terms of Rule 11 of the Central Excise Rules, 1944. He says that the provisions as regards the filing of the refund application with the Assistant Collector were mandatory and that the date relevant for computing limitation of time is the date on which the refund application was received by the Assistant Collector and not by the Superintendent of Central Excise. He also adds that the party's letter saying that he is making a refund application separately does not amount to a protest. However, the learned Departmental Representative has fairly conceded that in actual practice in many Collectorates, applications for refund were in fact being received in the office of the Superintendent on behalf of the Assistant Collector.
4. It is not denied by the Department that the refund claim was submitted to the Superintendent of Central Excise working under the Assistant Collector's jurisdiction well within the time limit. We also find that the facts of the case are quite peculiar as in this case it is not denied that the appellants were aware of the exemption notification and claimed the benefit of it immediately, but on insistence of the Superintendent of Central Excise they paid duty, pending receipt of the notification by the Superintendent. The appellants had informed the Superintendent of Central Excise that they were applying for refund separately. The appellants have argued that there was no prescribed form of protest at that point of time and that this was done much later and that, therefore, their letter in this respect should be considered adequate for this purpose, It seems to us that although it is possible, strictly in terms of law, to distinguish between the Assistant Collector of Central Excise and the Superintendent of Central Excise, yet, as far the spirit of the law is concerned, the claim of the appellants cannot be barred on grounds of limitation merely on the basis that it was filed before the Superintendent and not with the Assistant Collector. We observe that the claim was addressed to the Assistant Collector, through the Superintendent of Central Excise, who is normally called a Range Officer or Sector Officer of the Divisional Office set-up of the Assistant Collector and therefore in fact a part of the organisation headed by the Assistant Collector. The appellants have cited trade practice in their favour and referred to a Kanpur Collectorate Trade Notice which is not only not denied but it is fairly conceded by the learned Departmental Representative that in actual practice claims were being received by the Superintendent on behalf of the Assistant Collector. In view of these facts, we feel that the appellant's claim should not be considered as time-barred in so far as the decision of the lower authorities rests on the date of actual receipt of the claim by the Assistant Collector. We are fortified in this view by the decision in the case of Shri Ambika Khandsari Udyog.
5. In view of our foregoing findings we do not feel that it is necessary for us to go into other alternative pleas for grant of refund.
6. Appeal is allowed with consequential relief to the appellants.
Harish Chander, Member (J)
7. I have perused the Order of my Learned Brother Shri K. Prakash Anand. I am constrained to come to a different conclusion for the reasons as mentioned below.
8. My Learned Brother has narrated the facts and arguments of the both the sides, which are not disputed.
9. Section 11B of the Central Excises and Salt Act, 1944 relates to the claim for refund of duty. The same came into force with effect from 17-11-1980 vide Notification No. 182/80, dated 15-11-1980 and the same is reproduced as under :-
"Section 11B. Claim for refund of duty.-(1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date.
Provided that the limitation of six months shall not apply where any duty has been paid under protest.
(2) If on receipt of any such application, the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant should be refunded to him, he may make an order accordingly.
(3) Where as a result of any order passed in appeal or revision under this Act refund of any duty of excise becomes due to any person, the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf.
(4) Save as otherwise provided by or under this Act, no claim for refund of any duty of excise shall be entertained.
(5) Notwithstanding anything contained in any other law, the provisions of this section shall also apply to a claim for refund of any amount collected as duty of excise made on the ground that the goods in respect of which such amount was collected were not excisable or were entitled to exemption from duty and no court shall have any jurisdiction in respect of such claim.
Explanation.-for the purposes of this section,-
(A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India :
(B) "relevent date" means,-
(a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods,-
(i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or
(ii) if the goods are exported by land, the date on which such goods pass the frontier, or
(iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India;
(b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid ;
(c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory;
(d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction;
(e) in a ease where duty of excise is paid provisionally under this Act the rules made thereunder, the date of adjustment of duty after the final assessment thereof:
(f) in any other case, the date of payment of duty.".
10. A simple reading of Sub-section (1) shows that the refund application has to be made to the Assistant Collector of Central Excise before the expiry of six months from the relevant date, (f) Explanation to Section 11B also shows that the relevant date for the purpose of computation of limitation for making the refund application to the Assistant Collector starts from the date of payment of duty. In the present matter before us Urea and Di-Ammonium phosphate was exempted from the excise duty leviable on them in terms of Notification No. 65/80-CE, dated 7-6-1980, and this Notification was not received in the office of the Superintendent of Central Excise, Tuticorin, and on the insistence of the Superintendent of Central Excise, the Appellants had paid the Central Excise Duty from the date 7-6-1980 to 11-6-1980, and had paid duty to the tune of Rs. 4,81,259.71. A return in form RT-12 as required by Rule 173-G was filed for the month of June 1980 on 5-7-1980, and the assessment was completed by the Superintendent of Central Excise on 22nd August, 1980. The Appellants had filed an application for refund addressed to the Assistant Collector of Central Excise in the prescribed form through the Superintendent of Central Excise on the 5th December, 1980. The Superintendent of Central Excise had forwarded the said refund application to the Assistant Collector, which was received in the office of the Assistant Collector on 13th January, 1981. The learned Assistant Collector of Central Excise had rejected the refund application on the ground that the refund application was received in his office after the expiry of six months in terms of provisions of Section 11B of the Central Excises and Salt Act, 1944. My learned Brother Shri K. Prakash Anand has relied on the judgment of the North Regional Bench in the case of Shri Ambica Khandsari Udyog, Saharanpur v. Collector of Central Excise, Meerut reported in 1985 (21)E.L.T. 281 (Tribunal) and the Trade Notice No. 206/ 1980 issued by the Kanpur Collectorate. My learned Sister Smt. S. Duggal speaking on behalf of the Court has dissented to my earlier judgment in the case of Hindustan Motors Ltd. v. Collector of Central Excise and Customs, West Bengal, Calcutta reported in 1984 (16) E.L.T. 647. In the said judgment it has been mentioned that the filing of refund application was procedural, and the practice of filing the refund application in terms of Trade Notice No. 206/1980 issued by the Kanpur Collectorate was accepted. Tax statutes have to be construed strictly, prior to 6-8-1977 the prevailing Rule 11 was as follows:-
"Rule 11. No refund of duties or charges erroneously paid, unless claimed within three months.-No duties or charges which have been paid or have been adjusted in an account current maintained with the Collector under Rule 9, and of which repayments wholly or in part is claimed in consequence of the same having been paid through inadvertence, error or misconstruction, shall be refunded unless the claimant makes an application for such refund under his signature and lodges it with the proper officer within three months from the date of such payment or adjustment, as the case may be."
11. With effect from 6-8-1977, Rule 11 was substituted as under :-
Rule 11. Claim for refund of duty.-(1) Any person claiming refund of any duty paid by him may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty:
Provided that the limitation of six months shall not apply where any duty has been paid under protest.
Explanation.-Where any duty is paid provisionally under these rules on the basis of the value or the rate of duty, the period of six months shall be computed from the date on which the duty is adjusted after final determination of the value or the rate of duty, as the case may be.
(2) If on receipt of any such application the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty paid by the applicant should be refunded to him, he may make an order accordingly.
(3) Where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf.
(4) Save as otherwise provided by or under these rules no claim for refund of any duty shall be entertained.
Explanation.-For the purpose of this rule, "refund" included rebate referred to in Rule 12 and 12A"
12. Comparison of old Rule 11 (prior to 6-3-1977) with the substituted Rule 11 shows that under the old rule an application for refund could have been filed before the proper officer, whereas in the subsequent substituted Rule 11 the words "Assistant Collector of Central Excise" were added. The same is also incorporated in Section 11B. This clearly shows that the intention of the Legislature is that the refund claim should be filed before the Assistant Collector in order to avoid any possible misuse of the official machinery.
13. In the case of Hindustan Motors Ltd. v. CCE, Calcutta reported in 1984 (16) E.L.T. 647 no Trade Notice was brought to my notice, even if the Kanpur Collectorate's Trade Notice would have been referred to me, the same would not have any binding effect. Trade Notice cannot go over and above the provisions of statute. Trade Notice of one Collectorate has no binding force on the other Collectorate. In the present matter citing of the Kanpur Collectorate Trade Notice does not help the Appellants, as the matter before us relates to Madras Collectorate.
14. In my earlier judgment in the case of Hindustan Motors Ltd. v. Collector of Central Excise, West Bengal, Calcutta reported in 1984 (16)E.L.T. 647,1 had relied on the Hon'ble High Court Judgment in the case of Inchek Tyres v. Assistant Collector of Central Excise reported in 1979 E.L.T. J 236. The Hon'ble Mr. Justice Bimal Chandra Basak had held that even if "the amount was unlawfully collected petitioner's right to refund is covered by the statute, it provided the certain conditions which have not been satisfied in this case. It is not open to the Petitioner to contend that the Petitioner has such a right independent of the said statute." The Hon'ble High Court had relied on a judgment of the Hon'ble Supreme Court in the case of Burmah Construction Company v. State of Orissa and Ors. reported in AIR 1962 SC 1320. The Hon'ble Supreme Court had held that that "the petition in the present case is for enforcement of the liability of the Collector imposed by statute to refund a tax illegally collected and it was maintainable. But it can only be allowed subject to the restrictions which have been imposed by the Legislature. It is not open to the claimant to rely upon the statutory right and to ignore the restrictions subject to which the right may be enforceable."
15. With the above discussions, it is clear that when a statute provides a particular procedure, an assessee is supposed to follow the same. Especially an assessee dealing with the excisable goods should be aware of the provisions regarding the filing of refund claims, and the proper officer before whom it is to be filed.
16. In the present case the refund application was filed before the Superintendent of Central Excise, and he had forwarded the same to the Assistant Collector of Central Excise. There can be a situation where an assessee files a refund application for the refund of the excess excise duty paid by him before the Superintendent of Central Excise. On scrutiny, the Superintendent of Central Excise observes that he had filed the same in a wrong forum, the proper course for the assessee was to file it to the Assistant Collector. The Superintendent of Central Excise instead of forwarding the same to the Assistant Collector of Central Excise returns the same to the assessee for the filing of the same before the Assistant Collector having jurisdiction, and in response to the same the assessee re-submits the same refund application or files a fresh refund application, to the Assistant Collector of Central Excise. In such a situation there may be a small gap or a larger gap in the filing of the refund application after the expiry of the limitation. In such a situation, a question may arise whether the subsequent refund application filed before the Assistant Collector is to be treated within time, or the period for which the same remained undisposed of with the Superintendent of Central Excise is to be excluded in computing six months period of limitation for filing the refund application. If a liberal construction is given to the procedure for the filing of refund application, the very purpose of the provisions of the statute will be defeated. The Hon'ble Supreme Court in the case of Miles India Ltd. v. Assistant Collector of Customs reported in 1985 ECR 289 had held that the Customs authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided there for under Section 27(1) of the Customs Act, 1962. The Hon'ble Supreme Court had held in the case of Polstar and Co. Ltd. v. Addl. Commissioner of Sales-tax, New Delhi reported in AIR 1978 S.C. 897 that a statutory enactment must ordinarily be construed according to the plain natural meaning of its language and that no words should be added, altered or modified unless it is plainly necessary to do so in order to prevent a provision from being unintelligible, absent, un-reasonable, unworkable or totally irreconciliable with the rest of the statute.
17. The Hon'ble Supreme Court had further held that it is a well settled rule of interpretation that where there two are expressions which might have been used to convey a certain intention, but one of those expressions will convey that intention more clearly than other, it is proper to conclude that, if the legislature use one of the two expressions which would convey the intention less clearly, it does not intend to convey that intention at all.
18. In the present appeal before us, there is no doubt as to the name of the authority for the filing of refund application, the refund application has to be filed before the Assistant Collector.
19. In the light of the aforesaid discussion I stick to my earlier view in the case of Hindustan Motors Pvt. Ltd. v. Collector of Central Excise and Customs, West Bengal, Calcutta reported in 1984 (16) E.L.T. 647, and do not agree with the North Regional Bench in the case of Shri Ambica Khandsari Udyog, Saharanpur v. Collector of Central Excise, Meerut reported in 1985 (21) E.L.T. 281 (Tribunal) and the Trade Notice No. 206 of 1980 issued by the Kanpur Collectorate.
20. North Regional Bench had come to a different conclusion, as it had taken into consideration the Trade Notice No. 206 of 1980 issued by the Kanpur Collectorate. Meerut Collectorate was part of Kanpur Collectorate. Obviously Trade Notices issued by the Kanpur Collectorate before the formation of Meerut Collectorate, have to be followed by the Meerut Collectorate till that Trade Notice is superseded, altered or annulled by the Meerut Collectorate. Prior to 6th August, 1977 there was no statutory requirement of filing the refund application to the Assistant Collector under the then Rule 11 in force with effect from the 11th August, 1977, a provision was made in the Rule 11 to make the refund application to the Assistant Collector. With effect from 17th November 1980 Rule 11 was deleted in terms of Notification No. 182/80-CE, dated 15th November, 1980. Even after the amendment of law for the filing of refund application, the same were being filed by the assessees in the office of the Range Superintendent. This practice was duly accepted by the Revenue Authorities. Neither the Appellate Collector nor the Assistant Collector has mentioned in his order whether a particular practice was followed in the Range or the Collectorate. It appears that the appellant might have filed the application for refund before the Range Superintendent and thus had bona fidely followed the practice. Keeping in view the facts and circumstances of the case, we feel that an opportunity should be given to the appellant to establish that a practice similar to the practice in Kanpur Collectorate was prevalent in the Madras Collectorate at the relevant time. If the appellant can establish this, the case would be similar to the case of Ambica Khandsari Udyog, Saharanpur and the decision in that case would apply.
21. During the course of arguments, the learned Advocate had made an alternative plea that in the case of the appellant no period of limitation applies as the appellant had paid the duty under protest. The appellant had intimated to the Superintendent of Central Excise, Tuticorin M.O.R. vide his reference No. FA/CE dated 14-6-1980, wherein it was mentioned that the appellants are clearing indigenous fertilisers under nil rate of duty and will be preferring a claim for the duty paid from midnight of 6-6-1980 to 11-6-1980 with a copy to the Assistant Collector of Central Excise, Tirunelveli-2. My learned Brother has not gone into this aspect; probably it was not necessary for him, as he had accepted the appellant's first argument that the refund application was filed within the stipulated period. I am afraid, the alternative argument does not help the appellant in any way. The duty was paid from 6-6-1980 to 11-6-1980 whereas the appellant had written a letter on 14-6-1980. At the time of making the payment of duty there was no protest. The letter dated 14-6-1980 is an afterthought and the said letter is also addressed to Superintendent of Central Excise. The alternative plea of the appellant is not tenable and is rejected.
22. In view of the above discussion, the orders of the Appellate Collector and the Assistant Collector are set aside, and the matter is remanded to the Assistant Collector having jurisdiction for a fresh decision in accordance with law, and the principles of natural justice.
S. Venkatesan, President
23. I have gone through the orders recorded by my two learned brothers. They have differed on the question whether the date of receipt of the refund claim in the office of the Superintendent should be taken as equivalent to the date of receipt by the Assistant Collector for computing the time-limit under Section 11B. Brother Prakash Anand, citing the decision of a two-Member Bench of the Tribunal in the case of Shri Ambica Khandsari Udyog (1985 ECR 1224), has held that the application should be taken as filed within time, and that the appeal should be allowed. Brother Harish Chander, citing his own order as a Single Member in the case of Hindustan Motors Ltd. 1984 (16) E.L.T. 647 has held that the application was not within time and that appeal should be rejected.
24. Brother Prakash Anand has not dealt with the other main plea of the appellants, namely that payment of duty was under protest, since in the view that he took it was not necessary. Brother Harish Chander has negatived the other plea. I am in agreement with him that the letter dated 14-5-1980 could not be considered as a protest, and that the appeal has to succeed or fail depending on whether we hold that the filing of the application with the Superintendent was or was not tantamount to making an application to the Assistant Collector.
25. I have carefully studied the two orders of the Tribunal respectively relied upon by my learned brothers. It appears to me that, although on the face of it the two orders appear to be in conflict, they can nevertheless be reconciled. The reasoning in the Shri Ambica case is contained in paras 7 to 10 of the order in that case. No doubt these paragraphs seem to indicate a view that the filing of the application in the office of the Superintendent was per se tantamount to filing it with the Assistant Collector, However, a careful reading of the relevant paragraphs makes it clear that great weight, in fact virtually over-riding weight, was given by the Bench to the practice of the concerned Collectorate, as shown by the evidence placed before the Bench. Reference to the practice of applications being presented to and accepted by Superintendents and even by lower officers, as seen from a Public Notice issued by the concerned Collector, has been made in each one of paragraphs 7 to 10. Even what appears to be a categorical conclusion that presentation to the Superintendent was tantamount to filing with the Assistant Collector, contained in para 8, has been supported by the fact that the Superintendent entertained the application; it has also been qualified by a reference to the Trade Notice and the practice. This will be seen from the following extract:-
"In this view of the matter, we have no hesitation in saying that the act of the application having been addressed to the Assistant Collector, and having been presented to the jurisdictional Range Superintendent who entertained the same and passed it on to the office of the Assistant Collector, has to be held to be tantamount to making application to the Assistant Collector; particularly when the appellants have been able to establish by reference to the Trade Notice, issued by the Collectorate, that at the relevant time such a practice was allowed (sic)".
The order in the Shri Ambica case should therefore be seen in the context of a situation where it was established to the full satisfaction of the Bench that there was an established practice of applications being received by the Superintendent or lower officers on behalf of Assistant Collector. In other words, the situation was one of the Assistant Collector having explicitly or implicitly appointed the Superintendent as his agent to receive such applications. Now that position would not necessarily hold good in every Collectorate and at every point of time. The learned SDR had fairly agreed that a similar position prevailed in the Bombay Collectorate at a particular point of time. This again is not conclusive in the present case, which relates to the Madras Central Excise Collectorate during the latter part of 1982. In this situation it appears to me that the precedent of the Shri Ambica case would apply only if the factual basis is shown to be the same, namely that such a practice existed at the relevant time in the Madras Central Excise Collectorate. If the appellants are able to establish this, they should succeed on the question of limitation and their claim could be dealt with on merits by the proper officer. This is the view which brother Harish Chander proposes to take in para 19 of his order, and I agree with him and hold that our order in this case should be on the basis of this view.
ORDER
26. In accordance with the judgment of the majority of the Members who have heard the appeal, the matter is remanded to the concerned Assistant Collector for decision. He should decide the question of limitation after giving the appellants an opportunity to show that a practice existed in the Madras Central Excise Collectorate at the relevant time whereby refund applications were being received by the Range Superintendent on behalf of the Assistant Collector. In case he holds that such a practice existed, it would follow that the application in this case was made within time. He should in that case deal with the refund application on its merits.