Customs, Excise and Gold Tribunal - Calcutta
M/S Hindustan Udyog Ltd. vs C.C.E., Calcutta-Iii on 13 July, 2001
Equivalent citations: 2001(137)ELT1013(TRI-KOLKATA)
ORDER
Archana Wadhwa
1. All the four appeals are being decided by a common order as they arise out of the same impugned order vide which 6 refund claims of the appellants have been rejected.
2. The appellants are manufacturers of different types of conveyors and also manufactured spare parts of the conveyors. They had supplied different types of spare rollers to M.s South Eastern Coal Field, a Government of India Undertaking. The said spare rollers were rejected by the appellant's customers and as such after prolonged correspondence between appellants and the customers the rollers were brought back to the factory for the purposes of repairing/reconditioning/reprocessing under the provisions of Rule 173L of the C.Ex. Rules, 1944. The due procedure of filing D-3 intimations etc. were followed by the appellants, However, inasmuch as the goods were received back in the factory after a period of one year from the date of original clearance, they applied to the proper officer for extending time-limit of one year as provided under Rule 173L.
3. The appellants filed refund claims of different amounts on different dates for refund of duty paid on the rollers subsequently brought back to their factory.
4. After issuance of the Show-cause Notice, the Assistant Commissioner of Central Excise, Calcutta rejected the refund claims filed by the appellants on various grounds. Appeals against the same did not succeed before the Commissioner (Appeals). Hence the present appeals.
5. I have heard Shri B.N. Chattopadhaya, learned Consultant and Shri A.K. Chattopadhaya, learned JDR for the Revenue.
6. One of the grounds for rejection of the refund claims is that the goods have been brought back after lapse of one year from the date of payment of central excise duty from their first time removal from the factory without any extension/permission accorded by the competent authority. Assistant Commissioner has observed that though the assessee had applied for the extension of such time-limit, I find from the case records that no such extension has been granted by the proper officer nor the assessee could provide any such document permitting such time extension. On the other hand, the appellants' contention is that having applied for extension and there being no refusal by the Commissioner to extend time-limit, the same should have been treated as deemed to have been granted. However, I find that admittedly, the appellants have filed the application for extension period of one year as provided under Rule 173L, the proper officer/was/under legal duty to pass order on the said application. In any case, the said application was required to be decided before rejecting the refund claims of the appellants on the ground that no such extension order could have been shown by them to the Adjudicating authority. It is not case of the Revenue that extension has been refused by the proper officer. Accordingly, I feel that the appellants' application should be decided first and then their refund claims.
7. A portion of the refund claim has also been denied on the ground that they have replaced the grease with the rain caps and the rollers have been made free to suit conveyor. Assistant Commissioner has observed that exact process carried out by the assessee has not been disclosed and as such, the assessees' contention that they have reprocessed the goods cannot be accepted. I find that process of change of a particular type of cap with another type of cap so as to make the rollers suitable for use in the conveyors is covered by a wider use of expression of remaking/refining/reconditioning as used under the provisions of Rule 173L.
8. In respect of three claims the Assistant Commissioner has also observed that originally the goods were cleared as type of idler rollers falling under sub-heading 8431.00 whereas after return the same were fitted with the conveyors and were cleared under sub-heading 8428.00. Hence he has concluded that product in question after being subjected to processing within the assessee's factory was no more a product of same or similar characteristics or of the same class as that of the original product. The appellants have explained that initially the rollers were cleared as spares of conveyor by classifying under sub-heading 8431.00. On their return to the appellants' factory and after reprocessing as they were not finding buyers for the same they consumed the said rollers captively in the manufacture of conveyors. It was conveyor which was utlimately cleared under sub-heading 8428.00 Appellants' contention is that captive consumption of the rollers was clearance of the rollers and as such reasoning of the authorities below is not justified. I agree with the above legal issue that while issuing rollers for captive consumption the same has to be deemed as clearance of excisable goods. In the present matter, the rollers falling under Chapter Heading 8421.00 would be deemed to have cleared for captive consumption and as such this objection can not be sustained.
9. Another view adopted by the authorities below is that as the appellants have not cleared reprocessed goods till filing of their refund claims, the same cannot be sanctioned. The appellants' contention is that there is no provisions in terms of Rule 173L that reprocessed goods should be cleared before settlement of refund claims. On going through the provisions of Rule 173L I find the above submission to be correct. However, I find in terms of Rule 173L (1) provision (4), the amount of refund payable was in no case be in excess of duty payable on such goods after being remade/refined/reconditioned or subjected to any other similar process in the factory. As such the refund claims of the appellants have to be viewed from this angle that is duty payable on the reprocessed goods.
10. Inasmuch as the matter is required to go back in view of the observation of the point of permission of the Commissioner (Appeals) to extend period I direct the Assistant Commissioner to look into the refund claim afresh in the light of the observation made in the preceding paragraph. Appeals are allowed by way of remand.
(Pronounced)