1987 (5) TMI 187 - AT - Central Excise

Appeal successful for refund under Central Excises and Salt Act, 1944 without separate claim

The judgment allowed the appeal, setting aside the impugned order and determining that the appellant was entitled to the refund without the need for a ... Refund Issues:1. Whether the refund granted to the appellant was barred by the provisions of limitation under Section 11B(1) of the Central Excises and Salt Act, 1944.2. Whether the situation falls within the ambit of Section 11B(3) of the Act, allowing for a refund without a separate claim.Analysis:Issue 1:The appeal was against an order demanding duty and imposing a penalty on the appellants, which was later set aside by the revisional authorities. Subsequently, the Deputy Collector dropped all proceedings against the appellants, leading to a refund application by the appellants. The Collector of Central Excise reviewed the refund and directed the Assistant Collector to file an appeal. The main contention was whether the refund was barred by the limitation period under Section 11B(1) of the Act. The learned consultant for the appellant argued that as the refund was granted in pursuance of an order passed by the Deputy Collector, a separate refund application under Section 11B(1) was not necessary. However, the learned D.R. contended that the original order was not in appeal or revision, thus falling under Section 11B(1) and being time-barred.Issue 2:The crucial question was whether the refund granted to the appellant should be recalled due to limitation or if it could be considered under Section 11B(3) of the Act. The judgment highlighted the provisions of Section 11B regarding refund claims. It emphasized that if a person becomes entitled to a refund as a result of an order passed in appeal or revision, the Assistant Collector may refund the amount without a separate claim. The judgment clarified that the order of the Deputy Collector, though not an appeal or revision order, was an order of adjudication following a remand from the revisional authorities. It further explained the legal principles regarding appeals as a continuation of the original proceedings. The judgment concluded that the appellant did not need to file a separate refund application under Section 11B(1) as the situation fell within the scope of Section 11B(3), allowing for a refund without a specific claim.In conclusion, the judgment set aside the impugned order and allowed the appeal based on the interpretation of the provisions of Section 11B of the Central Excises and Salt Act, 1944, determining that the appellant was entitled to the refund without the need for a separate application under Section 11B(1).