1992 (1) TMI 113 - HC - Central Excise

Court dismisses petition citing limitation and merits, upholds Assistant Collector's decision.

ALEMBIC GLASS IND. LTD. Versus UNION OF INDIA

ALEMBIC GLASS IND. LTD. Versus UNION OF INDIA - 1992 (60) E.L.T. 64 (Guj.) Issues Involved:1. Compliance with Rule 173L of the Central Excise Rules, 1944.2. Filing of refund claim within the period prescribed under Section 11B of the Central Excises and Salt Act, 1944.3. Alleged violation of principles of natural justice.4. Department's alleged inducement regarding the necessity of Collector's permission for destruction of goods.5. Applicability of Section 11B to refund claims under Rule 173L.6. Discretionary relief under Article 226 of the Constitution of India.Detailed Analysis:1. Compliance with Rule 173L of the Central Excise Rules, 1944:The petitioner failed to comply with Rule 173L(3), which mandates submitting accounts of the returned goods to the Collector of Central Excise within the prescribed time. The petitioner did not apply for relaxation under Rule 173L(4). The Assistant Collector was justified in rejecting the refund claim due to non-compliance.2. Filing of refund claim within the period prescribed under Section 11B of the Central Excises and Salt Act, 1944:The refund claim was required to be filed within six months from the date of re-entry of the goods into the factory, i.e., by July 8, 1988. The claim was filed on March 29, 1989, beyond the prescribed period. The Assistant Collector's rejection of the claim on this ground was upheld as per the statutory provisions.3. Alleged violation of principles of natural justice:Initially, the petitioner contended that the Assistant Collector who issued the show cause notice had retired before passing the order, and his successor did not provide an opportunity for a hearing. The court directed a fresh hearing, which was conducted, and a new order was passed. The petitioner's claim of violation of natural justice was thus addressed and resolved.4. Department's alleged inducement regarding the necessity of Collector's permission for destruction of goods:The petitioner argued that past practices led them to believe that the Collector's permission for destruction was a pre-condition for filing a refund claim. The respondents refuted this, stating that previous refunds were granted without considering this as a condition precedent. The court found no merit in the petitioner's contention, emphasizing that Rule 173L does not require such permission before filing a refund claim.5. Applicability of Section 11B to refund claims under Rule 173L:The petitioner argued that Rule 173L is a complete code and Section 11B should not apply. The court disagreed, citing the definition of 'relevant date' under Section 11B, which includes the date of re-entry of goods for remaking. The court held that Section 11B applies to refund claims under Rule 173L, and the six-month limitation period must be adhered to.6. Discretionary relief under Article 226 of the Constitution of India:The petitioner sought relief under Article 226, arguing that the claim was just and should not be rejected on technical grounds. The court referred to Supreme Court decisions emphasizing that entitlement must be proved before discretion can be exercised. The court found no merit in granting discretionary relief, as the petitioner failed to comply with statutory requirements and the claim was time-barred.Conclusion:The petition was rejected on both grounds of limitation and merits. The court upheld the Assistant Collector's decision, emphasizing adherence to statutory provisions and the importance of timely compliance with procedural requirements. The rule was discharged.