ORDER
P.K. Desai, Member (J)
1. When the matter was called out for hearing none appeared for the respondents though the notice of hearing was duly served on them. Since the matter could be decided even in the absence of the respondents, I proceeded to dispose of the appeal.
2. This appeal by the Revenue is directed against the order in appeal M-382/BD- 243/86 dated 28-5-1986, allowing the respondents’ appeal arising out of the order in original No. 66/83 dated 20-10-1983.
3. The respondents filed a refund claim for an amount of Rs. 31,907.37 based on the Notification No. 43/82-C.E. Part of the refund claim was sanctioned by the Asstt. Collr. who rejected the other part on the ground that the application for the refund was beyond the period of limitation prescribed, in so far as it related to the refund arising out of the period from 13-4-1982 to 20-10-1982. The Collector (Appeals), however relied on the decision of the Andhra Pradesh High Court in the case of Amric Engineering (P) Ltd., 1980 (6) E.L.T. 620 (A.P.) and also on other decisions of the Kerala High Court and the Government of India to the effect that the period of limitation would start running from the end of the financial year. He, therefore, held that the bar of limitation was not existing and granted the refund to the appellants.
Shri Arun Tandon, the Ld. SDR, has however, submitted that the ratio of these decisions would not stand attracted, firstly on the ground that those decisions related to the granting of partial exemption on specific goods, on clearance upto a specified limit provided the clearances during the financial year did not exceed the maximum limit laid down therein. In his submission, Notification No. 43/82-C.E. which is attracted here, grants complete exemption to the entire quantity upto a particular limit and the manufacturer is liable for payment of duty only if the annual turnover exceeds Rs. 2,50,000/-. In his submission, therefore, the appellants who are eligible to claim benefit under Notification No. 43/82 ought not to have paid the duty, till they exceeded or expected to exceed the limit specified in the said notification and in any case, even if they sought to pay the duty right from the first day, as soon as they could realise that their annual turnover was not exceeding the limit, they ought to have claimed the refund within the period of six months as is permissible under the law. He has emphasized that this is an exemption notification given to small scale manufacturers who did not exceed the specified limit in the previous year and were not likely to exceed the limit during the current year, whereas the notification referred to in the judgment relied upon by the Collector (Appeals) was in the form of giving some concession to the party who did not exceed the particular limit. He, therefore, urged that the finding of the Collector (Appeals) is not proper. His attention was drawn to the Bombay High Court judgment reported in 1991 (51) E.L.T. 532. He submitted that the said judgment has not clarified as to which was the notification under reference and that further in the decision of the Tribunal in Rainbow Industries v. Collector Cen. Excise, 1991 (53) E.L.T. 56, a view has been taken that the refund claim ought to be filed within the period of six months from the date of payment and need not be deferred till the end of the year.
5. Going by the Notification 43/82, it makes the exemption conditional upon the appellant not exceeding the specific limit during the current financial year. This obviously would come to the knowledge only when the financial year ends. The Ld. SDR is correct in his submission that the appellants need not have paid the duty and could have started paying duty only when they could realise the benefit of exemption in view of the current production. But merely because the appellants chose to pay duty and waited till the end of the financial year to ascertain as to whether they exceed the limit prescribed, would not debar them from claiming the benefit under the said notification. Besides, the judgment of the Andhra Pradesh High Court and of the Kerala High Court referred to by the Collector (Appeals), the Bombay High Court has also in their judgment referred to above, mentioned that when the exemption is dependent upon the annual turnover, the period of limitation should start from the expiry of the financial year. The distinction of this being a small scale exemption and what is under reference being those for specific goods, would not have any material bearings so far as computing the period of limitation is concerned, when the exemption is based on the annual turnover. Taking the ratio of the decision of the Bombay High Court which has also been approved by other High Courts, the order of the Collector (Appeals) appears to be correct.
6. The Ld. SDR then submitted that in view of the latest amendment of the Central Excises & Salt Act and the decision of the Supreme Court, the issue of unjust enrichment should also be examined. This issue, however, has neither been raised in the appeal memorandum nor at any other stage in the proceedings and therefore, it is not possible to go into the same at this stage.
In the result the appeal is rejected.