TaxTMI 
TaxTMI 
1990 (2) TMI 72
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....of Central Excise should be taken as the date of receipt of the application by the proper authority :- (a) at any time? (b) on or after 23-5-1979, the date of the Trade Notice No. 112/79 issued by the Collector of Central Excise, Cochin? 2. The respondent is the Revenue. The assessee is admittedly entitled to partial exemption from payment of excise duty in terms of Government Notification No. 198/76-C.E., dated 16-6-1976. The base period therefore, in the case of the assessee, who is a tea manufacturer, was fixed as 1975-76. The assessee-company had cleared 6,22,134 Kgs. of tea during the year 1978-79 and the excess over the base clearance was 70,039 Kgs. The period during which the clearance exceeded the base clearance was from 9-2-1979 to 31-3-1979. Under the terms of Notification No. 198/76 dated 16-6-1976 the appellant was entitled to refund of 25% of the excise duty paid on the above excess over the base clearance of 73,039 Kgs., which amounted to a sum of Rs. 11,503.64. On the 3rd of August 1979 the appellant filed a claim, dated 13-7-1979, for refund of the said amount, addressed to the Assistant Collector of Central Excise, Kottayam - vide Annexure B. It was filed....
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....o furnish certain details. When such details were furnished, the Superintendent of Central Excise forwarded the refund claim to the Assistant Collector of Asstt. Collector of Central Excise, stating that the claim was received in his office on 3-8-1979 and it was filed within the time limit prescribed and that the assessee is entitled to the refund. The assessee's counsel argued that the only question that arose for consideration under Rule 11 was whether an application was made for refund of excise duty to the Assistant Collector before the expiry of six months. In this case Annexure B will show that the application for refund was made to the Assistant Collector, though it may be that it was routed though the Superintendent, in consonance with the earlier practice. The fact that there was delay in the forwarding of the application by the Superintendent's Office cannot visit the assessee with any penal consequences. The application having been made or addressed, to the Assistant Collector, as specified in Rule 11, should have been held to be filed within time. Counsel pressed into service the decision of the Supreme Court in Madras Port Trust v. Hymanshu International - (1979) 4 SC....
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....rities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable." Annexure B is the application submitted for refund. Admittedly, it is addressed to the Assistant Collector of Central Excise, Kottayam. The Assistant Collector himself admits that the said claim dated 13-7-1979 was filed with the Range Office, Munnar on 3-8-1979. It related to a period from 9-2-1979 to 31-3-1979. It is also evident that the said application was processed, and certified as correct and maintainable, entitling the assessee to refund, as one filed within time by the Superintendent of Central Excise in the communication addressed to the Assistant Collector of Central ....
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.... that the claim must be held to have been presented to the Assistant Collector on 4-1-1978 when it was handed over to the Superintendent who must have received it on behalf of the Assistant Collector. If so the entire claim was within time under Rule 11 of the Central Excise Rules." The approach made in the said decision and the conclusion arrived at therein have our full concurrence. The claim for refund should be made to the Assistant Collector. That is all. It need not be presented before the Assistant Collector. It is also evident that consistent with prior practice the application was received by Range Office without demur. It was not returned as defective. The assessee was not directed to present the claim before the Assistant Collector. This is the normal course that should have been adopted, if the claim was not entertainable by the Range Office, though addressed to the Assistant Collector. On the facts of this case, one salient feature is that the order of the Tribunal aforesaid was passed by a Bench, wherein one of the members was the person who rendered the decision in this case as the Appellate Collector. We are satisfied that the conclusion of the Appellate Tribunal....