TaxTMI 
TaxTMI 
1994 (12) TMI 355
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....revenue is aggrieved with this finding. It is the revenue's case that refund claim has to be filed within 6 months from the date of payment of duty as per Rule 11 of Central Excise Rule, 1944, and as the claim has not been filed within 6 months, the claim is, therefore, to be rejected. We have heard Sh. K.K. Dutta, ld. JDR and Sh. Gopal Prasad, ld. Consultant and have carefully perused the citation. We are agreeable with the plea of the Revenue. The refund claim has to be preferred within 6 months from the date of payment of duty. This view flows from the judgment rendered by the division bench of Hon'ble Andhra Pradesh High Court as rendered in the case of Asstt. Collector v. T.T. Plunny Proprietor Royal Smiths as reported in 1983 ECR 633D (Ker) : 1983 (14) ELT 2156. This has been followed by the Tribunal in the case of Asian Bearing Ltd. v. Collector of Central Excise as 1991 (51) ELT 502. The Tribunal has also followed another ruling of Bombay High Court as rendered in the case of B.T.X. Chemicals (P) Ltd. v. Collector of Central Excise as reported in 1989 (22) ECR 167 (Bom) : 1989 (41) ELT 377. The Bombay High Court has taken a contrary stand in the case of Weikfield Pr....
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....b.) which has examined the effect of para 5 of notification No. 80/80 dt. 19.6.1980 in respect of a manufacturer holding a Central Excise licence w.e.f. 1.4.1982 and had cleared the goods between 1.6.1982 to 14.3.1983 valued at less than Rs. 15 lakhs on payment of duty and later on claimed refund by an application filed on 14.3.1983. The Tribunal essentially relied upon a judgment of the Division Bench of Kerala High Court reported in 1983 ECR 633D (Ker) : 1983 (14) ELT 2156 (ACCE v. T.T. Plunny, Prop. Royal Smiths, Ernakulam). 4.1. Learned JDR has also relied upon Bombay High Court's judgment of a single judge in the case of BTX Chemicals Pvt. Ltd. v. CCE 1989 (22) ECR 167 (Bom) : 1989 (41) ELT 377 (Bom.) which has examined the notification No. 89/79-CE dt. 1.3.1978. 5. Learned consultant Shri Gopal Prasad, on the other had contends the wording of the notification is such that it raises the cause of action for claiming exemption only at the end of the financial year. It cannot, therefore, be found out before the end of the financial year whether a manufacturer is entitled to the exemption under notification 97/70 or not. Till that time, all payments of duty should be deemed ....
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....iness. Although the realisation that the goods cleared do not exceed the two lakhs which alone could qualify for exemption, may come only at the end of the assessment year, the claim for refund has to be limited to goods but not more than Rs. 50,000. There is nothing in Rule 173J or Rule 11 which obliges a person to confine his claim for refund to the articles removed in the earlier part of the year rather than to the later portions thereof; so that, the hardship and the inequity of having to prefer a claim or application for refund with respect to the earlier purchases and removals of steel furniture are more imaginary than real, in case of dealers regularly buying and clearing throughout the year. And, as for exceptional case of heavy concentration of clearance and removal in the early part of the year, with a rule of the type here involved, there is no reason why an application for refund should not be made each time clearance is made, up to the limit of Rs. 50,000 leaving the authority to reject the same, if the ceiling of Rs. 2 lakhs for obtaining refund had been exceeded. 6.1. Findings of Bombay High Court in 1991 (32) ECR 535 (Bom.) : 1991 (51) ELT 323 (Bom.) in this regard....
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....ow declining refund as claimed by the petitioners cannot be sustained and the petition must succeed. 6.2. From a reading of Kerala High Court's findings, it is apparent that the Court has examined the plea of impracticality and futility of filing an application for refund for an earlier period irrespective of the fact whether an assessee is entitled to refund of duty or not-that fact being known only at the end of the financial year. Kerala High Court found that the plea of impracticality does not appeal to them. Assessee can keep on filing refund applications to meet with the requirement of relevant provisions (Rule 11 and now Section 11B) leaving it to the Revenue to reject the applications, if it found that the clearances of the assessee had exceeded the ceiling stipulated for the financial year. Bombay High Court in Weikfield, on the other hand, has stressed on the fact that the claim of exemption is available only at the end of the financial year. With the utmost respect to both High Court, I am inclined to follow the approach of Bombay High Court, relying upon the Tribunal's judicial freedom enunciated in the case of Atma Steel (1984 ECR 1409 (T) : 1984 (17) ELT 331)....
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....id at the time of clearance in respect of goods within the limit of Rs. 15,00,000/-, the period of limitation would begin from the date of the payment of the duty. This part of the contention of Shri Shah is, therefore, liable to be negatived. [Emphasis supplied] 6.5. Going by the number of authorities directly for and against the issue involved herein, I am fortified in the view I have taken above. 6.6. Asian Bearing, in my view, is not applicable because the notification 80/80 in that case is in terms different from the one under consideration here. 6.7. Hence, I dismiss the appeal of the Revenue. Sd/- (P.C. Jain) Member (T) Dated 17.12.1993 A point of difference has arisen between the two Members which is as under:-- Whether in the facts and circumstances of the case the refund application filed by the respondents on 27.4.1978 is within time or not. Sd/- (P.C. Jain) Member (T) Dated 17-12-1993 Sd/- (S.L. Peeran) Member (J) S.K. Bhatnagar, Vice President. 7. This matter has been referred to me by Hon'ble President due to difference of opinion between the two Learned Members on the following point; Whether in the facts and circums....