ORDER
D.C. Mandal, Member (T)
1. In this case the appellants filed an application dated 23-12-1977 addressed to the Superintendent, Central Excise, S.R.P., Aligarh claiming refund of Central Excise duty of Rs. 12,412.40, being refund of duty paid by them during the period from 25-2-77 to 16-9-77. Superintendent of Central Excise forwarded the refund application to the Assistant Collector of Central Excise on 17-9-79. Refund claim was rejected by the Assistant Collector as time-barred under Rule 11 (1) of the Central Excise Rules, 1944 as it was not received in his office within a period of six months from the date of payment of duty. Appeal filed before the Appellate Collector of Central Excise, New Delhi was rejected in the impugned order. Hence, this appeal before us.
2. Shri Garg, appearing for the appellants, has argued that in view of Kanpur Collectorate Trade Notice No. 206/80 practice of receiving refund claims by the Range Superintendent in Kanpur Collectorate during 1977 is to be presumed. The refund application dated 23-12-1977 was filed by the appellants before the Superintendent of Central Excise according to that practice. The Superintendent took some action, entered into correspondence with the appellants and then forwarded the letter of claim to the Assistant Collector of Central Excise on 17-9-77. New Rule-11 of the Central Excise Rules was introduced w.e.f. 6-8-77 by Govt. of India Notification No. 267/77-C.E., dated 6-8-77. According to the new Rule, refund claim was to be submitted before the Assistant Collector of Central Excise, but prior to the amendment of the Rule the application could be filed before the proper Officer. Learned Advocate has further stated that the appellants’ case is covered by the Tribunal’s decision reported in 1987 (27) ELT 337.
3. Arguing for the respondent, Shri Shishir Kumar has stated that in 1977 there was no practice in Kanpur Collectorate for filing refund application before the Sector Officer. The claim was submitted to the Superintendent in the Appellants’ letter dated 23-12-1977. In December, 1977, new Rule 11 of the Central Excise Rules was in force and according to the clear provision of this Rule all refund claims were required to be filed before the Assistant Collector. There was, therefore, no justification for the appellants to submit this refund claim before the Superintendent of Central Excise. The present case is fully covered by the decision-of this Tribunal reported in 1987 (27) ELT 337. Following that decision, the present appeal should be dismissed. Shri Shishir Kumar has drawn our attention to Page 341 of the ELT in which the Tribunal has observed that filing of the refund claims to the Jurisdictional Sector Officer or the Range Officer on their own cannot be said to be an established practice. He has stated that the claim was rightly rejected by the lower authorities and their orders should be upheld.
4. We have considered the case records and the arguments of the learned Advocate and the learned SDR. The facts of the present appellants’ own case reported in 1987 (27) ELT 337 were that on 27-12-1977 the Respondents therein M/s. Prag Vanaspati Products, Aligarh filed an application claiming refund of Central Excise duty paid by them during the period from 24-8-1977 to 27-11-1977. The application was submitted to the Superintendent, Central Excise Range, who forwarded it to the Assistant Collector of Central Excise on 5-7-80. The Assistant Collector rejected the claim as time-barred under Rule 11 of the Central Excise Rules, 1944 as the application was received by him after expiry of six months from the date of payment of duty as prescribed in that Rule. An appeal was filed before the Collector (Appeals) against the order of the Assistant Collector. It was urged by the respondents that the application was made to the Range Superintendent as per practice. The appeal was allowed by the Collector (Appeals) on the ground that the application for refund was addressed to the Assistant Collector; Superintendent (Central Excise Range) being a subordinate Officer to the Assistant Collector, could as well be deemed to be a part of his office. The Revenue filed an appeal before this Tribunal against the order of Collector (Appeals). This Tribunal, in the said case, examined the matter in great details with reference to the various Trade Notices issued by the Kanpur Collectorate including Trade Notice No. 206/80, dated 23-12-1980, Central Government Notification No. 267/77-C.E., dated 6-8-1977 and new Rule 11 of the Central Excise Rules, 1944. After examining the matter in great details and after verifying the factual position as to whether there was any practice of receiving the refund applications by the Range Superintendent during the year 1977 in Kanpur Collectorate, this Tribunal held that time limit prescribed in new Rule 11 of the Central Excise Rules should be observed in the absence of any practice during the relevant time for receiving the refund claims by the Range Superintendent. It was decided by this Tribunal that provision of Rule 11 of the Central Excise Rules was mandatory and since the claim was not received by the Assistant Collector within the period of six months as stipulated in Rule 11, the Assistant Collector was justified in rejecting the claim as time-barred.
5. The learned Advocate, in the present case, has drawn our attention to the facts that on receipt of the refund application, the Superintendent did not pass on the same to the Assistant Collector of Central Excise, but instead, he kept it in his office and later on, in connection with the refund claim, the Inspector, Central Excise, vide his letter dated 2/4-8-78 asked the appellants to forward the original Treasury Challan or the certified copies thereof. The Inspector of Central Excise, M.O.R.l, Aligarh also sent a reminder to the appellant Company on 1-2-79 in that connection. In letter CNo. E/13/Refund/77/199 dated 2/4-8-78, the Inspector of Central Excise, M.O.R.l, Aligarh asked the appellants to furnish 3 Treasury Challans in original or certified copy “so that the refund claim could be finalised and forwarded to the Assistant Collector, Central Excise, Aligarh”. This letter was pursued by reminder CNo. V/13/Refund/77/257 dated 1-2-79 and he requested the appellants to send an early reply to letter dated 2/4-8-78.This fact distinguishes the present case from the appellants’ case reported in 1987 (27) ELT 337. In the present case, the Superintendent entertained the refund application although according to the amended Rule 11 of the Central Excise Rules the refund claim was to be filed before the Assistant Collector or Central Excise and during the relevant period there was no practice in Kanpur Collectorate for receiving the refund claims in the Range Office. If the Range Superintendent did not take any action on the refund application, the position could be different; but in the present case the Range Superintendent took action on the application and asked the appellants to furnish the Treasury Challans to enable him to finalise the refund claim and forwarded the same to the Assistant Collector. In view of this, in the interest of justice to the appellants, we direct that this refund application may be treated to have been received by the Superintendent on behalf of the Assistant Collector of Central Excise and the refund be granted to the appellants, if otherwise admissible. We, therefore, set aside the impugned order and allow the appeal in the above term.