1978 (1) TMI 165 - Commissioner - Central Excise

Refund claim upheld: Exemption granted within time limit. Assistant Collector's order set aside.

The court held that the refund claim was valid as it was filed within the prescribed time limit. The exemption restriction did not apply to the appellant, ... Time limit for refund claim - eligibility for refund on clearances within financial year - assessment finalised - exemption under Notification No. 97/70-CE - second proviso to Notification No. 14/76-CE - simplified procedure / licence duration requirementTime limit for refund claim - eligibility for refund on clearances within financial year - assessment finalised - Whether the three month period for claiming refund is to be computed from 31-3-1977 (end of the financial year 1976-77) rather than from the date on which clearances first exceeded the value of one lakh rupees. - HELD THAT: - The appellant's total clearances for the financial year 1976-77 could not be ascertained until the year ended on 31-3-1977. If total clearances did not exceed Rs. two lakhs up to 31-3-1977, the appellant was eligible for refund on clearances not exceeding Rs. one lakh. Consequently, the statutory three month limitation for filing the refund claim must be reckoned from the close of the relevant financial year (31-3-1977) and not from the earlier date when the one lakh threshold was crossed. An alternative but consistent view is that assessments in respect of clearances up to the two lakh limit can be regarded as finally determined only after the two lakh threshold is ascertained, i.e., at year end. Applying this approach, the refund claim submitted on 5-4-1977 fell within the three month period counted from 31-3-1977.Three month period for refund claim is to be counted from 31-3-1977; the refund claim of 5-4-1977 was timely.Exemption under Notification No. 97/70-CE - second proviso to Notification No. 14/76-CE - simplified procedure / licence duration requirement - Whether the appellant was precluded from the exemption under Notification No. 97/70-CE by the second proviso to Notification No. 14/76-CE. - HELD THAT: - The Assistant Collector rejected the refund claim on the basis that the exemption under Notification No. 97/70-CE was restricted by the second proviso to Notification No. 14/76-CE. The finding is unsustainable on the facts: the appellants were not 'new licencees' and did not hold a licence in Form L.4 for less than twelve months immediately preceding the month of application for simplified procedure. Therefore the limitation in the second proviso did not apply to them and could not validly be invoked to deny the exemption.The restriction in the second proviso to Notification No. 14/76-CE does not apply to the appellants; the exemption under Notification No. 97/70-CE is available.Final Conclusion: The order of the Assistant Collector is set aside; the refund claim is sanctioned as timely and the exemption under the applicable notification is available to the appellant. The judgment in the case of Collector of Central Excise, New Delhi states that the refund claim was valid as it was submitted within the time limit of three months from 31-3-1977. The exemption restriction under Notification No. 14/76-CE was not applicable to the appellant. The order of the Assistant Collector was set aside, and the refund claim was sanctioned. (Case Citation: 1978 (1) TMI 165 - Collector of Central Excise, New Delhi)