Customs, Excise and Gold Tribunal - Mumbai
Gujarat State Fertilizers And ... vs C.C.E. on 22 September, 1998
Equivalent citations: 1998(104)ELT484(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. The appellant filed on 1st March, 1986 a classification list claiming the benefit of Notification 217/86 for oleum manufactured by it to be captively utilised. This classification test was approved, as claimed, in September, 1989 by the intervening period, the appellant paid duty from 1st March, 1986 to 31st December, 1986 at the rate applicable to the product but for the exemption. It filed a claim for refund of the duty so paid on 14th February, 1987. The Assistant Collector [whose order has been confirmed by the Collector (Appeals)] held that part of the claim, relating to the duty paid more than six months before 14th February, 1987 was barred by limitation in terms of Sub-section (1) of Section 11B of The Act. Hence this appeal.
2. In Gujarat State Fertilizers Co. Ltd. v. CCE, Vadodara - 1996 (83) E.L.T. 524, this Tribunal basing its decision on the Supreme Court judgment in Samrat International Pvt. Ltd. v. Collector - 1992 (58) E.L.T. 561 (S.C.) has held that the claim for refund filed while the classification was pending finalisation would not be barred by limitation, since the payment of duty must be considered to be provisional till the date of classification was finally approved. The claim, therefore, was not barred by limitation.
3. The Departmental Representative contends that the given claim would be premature having been made before the classification was approved. We do not find anything in Section 11B that prohibits the claim made in these circumstances before the relevant date has come to play. The period referred to Sub-section (1) of Section 11B only provides that the claim for refund of duty must be made within six months from the relevant date. None of the "relevant date" specified is before payment of duty. No one could, or would file a refund claim before paying duty for which refund is claimed. In the present situation, the appellant preferred to pay duty on goods on which it claimed exemption which was finally granted. We, therefore, do not see that the appellant is not required to file now a fresh claim.
4. The Collector (Appeals) has sent part of the claim which was not barred by limitation to the Assistant Collector for determination on merits, which had not been done by that authority, the claim having been dismissed on limitation. We, therefore, hold that the claim was valid and direct the Assistant Commissioner to dispose the earlier claim on merits according to law.