ORDER
V.T. Raghavachari, Member (J)
1. In connection with manufacture and clearance of safety matches, the appellants M/s. Wimco Ltd. had applied for set-off of excise duty paid on goods falling under Tariff Item 68 used as inputs in the manufacture of matches by them. They relied upon Notification No. 178/77-C.E., dated 18-6-1977 in this connection. The Assistant Collector of Central Excise, Dhubri rejected the said claim under his order dated 4-6-1980 and made reference to Notification No. 201/79-C.E., dated 4-6-1979 and Notification No. 264/79-C.E., dated 29-9-1979 in this connection. He pointed out that the goods had been already cleared by the appellants without availing of set-off and under Notification No. 201/79 no cash refund was admissible and that under Notification No. 264/79 set-off was not available as duty had been paid by the appellants through banderols. Prior to the date of the said order (that is) on 20-5-1980, the appellants had sent a letter to the Collector of Central Excise, Shillong referring to their claim for set-off pending with the Assistant Collector and seeking his intervention in that matter for an early settlement of the said claim. In response to that letter the Collector sent a reply dated 27-6-1980 (i.e.) after the order of the Assistant Collector, mentioning therein “I am directed to say that since you did not avail of set-off of duty at the time of removal of the finished matches no relief by way of refund or adjustment in the PLA can be granted to you. However, you may approach the Central Board of Excise and Customs, New Delhi for a special permission in the matter.” This letter had been signed by the Deputy Collector on behalf of the Collector.
2. Subsequently the appellants filed an appeal before the Central Board of Excise & Customs referring to the facts mentioned earlier, and stating (ground N in the appeal) that as the Collector had also given his views and opinion amounting to a decision, through the letter of the Deputy Collector, the appeal was being filed for quashing the order of the Assistant Collector as also the “said letter” of the Collector and allowing the claim of the appellants. This was rejected by the Central Board under order dated 31-10-1980. The order read “The Board observes that in this case, on the same issue a formal appealable order had also been passed by the Assistant Collector of Central Excise, Dhubri. The appellants should have gone in appeal against that order by duty following the instructions given in the preamble to the adjudication order instead of referring the matter to the Collector. Accordingly the Board rejects this appeal as not made to the proper authority.” The appellants preferred a revision petition to the Central Government against that order of the Central Board. The same is now before us, on transfer, as this deemed appeal.
3. On the appeal being taken up an objection has been taken for the Department that the appeal did not lie. After hearing both sides the said preliminary objection was over-ruled under order No. M-263/86-D, dated 28-10-1986.
4. We have heard arguments on the merits of the case from Shri V. Lakshmikumaran, Advocate for the appellants and Mrs. Saxena, for the Department.
5. As earlier mentioned the rejection of the claim of the appellants by the Assistant Collector was for the reason that as the appellants had not availed of set-off of duty at the time of clearance of the finished excisable product (matches) their claim for set-off of duty cannot be granted in terms of refund. As Shri Lakshmikumaran points out this very issue was the subject-matter of an earlier appeal in the case of M/s. Match House in E-Appeal No. ED(SB)(T) A. No. 704/81-D. There also the claim for set-off rejected on the ground mentioned earlier. The contention for the assessee was that since the duty was being pre-paid through banderols in case of matches there could have been no occasion for claiming set of at the time of clearance of the finished product (matches). On taking into consideration the said peculiar circumstances with reference to clearance of matches the Tribunal held as follows. In paragraph 8 of its order:
“In the peculiar facts and circumstances of the case, we consider that it is necessary, in the interest of justice that the appellants should be given a chance to establish with the help of such records as are available to the satisfaction of the Assistant Collector that relief to the extent of the duty paid on the inputs is in fact due.”
6. In view of this Smt. Saxena has nothing further to urge. We, therefore, hold that in the present instance also the matter has to be remitted to the Assistant Collector for consideration of the matter afresh and grant relief to the extent necessary.
7. This appeal is accordingly allowed and all the orders of the lower authorities are set aside and the matter is remitted to the Assistant Collector for consideration of the matter afresh and disposal in accordance with Law granting relief to the appellants to the extent they are able to establish with the help of such records as are available with them to satisfy the Assistant Collector as to the extent of duty paid on inputs.