1986 (2) TMI 214 - AT - Central Excise

Tribunal overturns Excise orders, directs refund to M/s Shree Digvijay Cement Co., Ltd.

The Tribunal set aside the orders of the Assistant Collector of Central Excise, Ahmedabad, and the Collector of Central Excise (Appeals). The appeal of ... Refund - Excess duty refundable Issues Involved:1. Jurisdiction of the Tribunal.2. Applicability of the time limit under Rule 11 of the Central Excise Rules, 1944.3. Nature of duty payment under Chapter VIIA of the Central Excise Rules, 1944.4. Date from which the limitation period is to be computed for refund claims.Issue-wise Detailed Analysis:Jurisdiction of the Tribunal:The first question to be considered was the jurisdiction of the Tribunal. Both the appellants and the respondent agreed that the appeal did not involve a matter relating to the value of goods for assessing duty. Therefore, the Tribunal had the jurisdiction to hear the appeal and pass an order on the appeal of M/s. Shree Digvijay Cement Co. Ltd.Applicability of the Time Limit under Rule 11:The appellant's claim for refund of duty was initially rejected by the Assistant Collector and subsequently by the Collector (Appeals) on the grounds that it was time-barred under Rule 11 of the Central Excise Rules, 1944. The Assistant Collector observed that since the refund application was received on 12-11-1979 and the period for claiming the refund was from 1-12-1978 to 30-12-1978, the claim was barred by limitation. Even considering the appellant's letter dated 16-7-1979 as a claim for refund, it was still filed after the prescribed time limit of six months from the date of clearance of the goods. The Tribunal, however, found that the decisions of the lower authorities regarding the rejection of the claims as time-barred were not correct.Nature of Duty Payment under Chapter VIIA:The Tribunal examined whether the duty paid by the appellants was provisional or final. It was argued that under Chapter VIIA, the procedure prescribed was for provisional assessment, not final assessment before the clearance of goods from the factory. The Tribunal noted that the scheme under Chapter VIIA reversed the procedure prevailing under Chapter V, indicating that the duty payment was provisional, with final assessment occurring later. The Tribunal concluded that the relevant date for claiming a refund should be the date when the assessment was finalized under Rule 173-I, not the date of initial duty payment.Date from which the Limitation Period is to be Computed:The Tribunal held that for an assessee working under Chapter VIIA, the relevant date for purposes of Explanation (B) of Section 11B was the date of assessment of the RT 12 return by the Superintendent of Central Excise under sub-rule (1) of Rule 173-I. The Tribunal found that the RT 12 return for December 1978 was assessed finally on 12-10-1979, and the appellant's claim for refund filed on 9-11-1979 was within the time limit prescribed under Section 11B. Therefore, the claim was not time-barred.Conclusion:The Tribunal set aside the orders of the Assistant Collector of Central Excise, Ahmedabad, and the Collector of Central Excise (Appeals). The appeal of M/s Shree Digvijay Cement Co., Ltd. was allowed, and the Tribunal directed that the amount of Rs. 28,903.17 recovered as excess duty during the period 1-12-1978 to 30-12-1978 be refunded to the appellants.