ORDER
S.L. Peeran, Member (J)
1. Indian Oxygen Ltd. had filed a revision petition before the Joint Secretary to the Govt. of India against Order-in-Appeal No. 504/81 (A. No. 89/81 (M)) of the Appellate Collector of Central Excise, Madras dated 23-6-81 denying the benefit of exemption of Notification No. 198/76 for the period between 7-3-78 and 31-3-78 and as a result the refund of excise duty to the extent of Rs. 10,105.16 was rejected. On the constitution of the Tribunal the revision application was transferred to the Southern Regional Bench. The Tribunal disposed off the appeal No. 55/82 MAS arising from Order-in-Appeal No. 504/81 dated 23-6-81 passed by the Appellate Collector of Central Excise, Madras in File No. V/14H/1/81 by its order dated 10-5-85. By this order the Tribunal set aside the order of the Collector of Central Excise and held that the assessee was entitled to the benefit of notification No. 198/76 in the light of Special Bench, New Delhi’s ruling rendered in Neelamalai Tea Coffee Estates and Enterprises, Nilgiris v. CCE, Madras reported in 1983 (14) E.L.T. 2426.
2. The revenue being aggrieved to the order filed a reference application before the Tribunal for referring the question to the Hon’ble High Court of Madras in E/REF/67-85 (MAS). This Bench accepted to refer only one question to the Hon’ble High Court of Madras which is as follows :
“Whether in the facts and circumstances of the case the date of declaration would be the relevant date for the purpose of claims of refund under Rule 11 of the Central Excise Rules, 1944”.
3. Hon’ble High Court took up the question referred to them and by their dated 18-9-2000 in reference case No. 5/86 has passed the following order:
“The assessee is engaged in the manufacture of compressed oxygen and liquor oxygen falling under item 14-H of the Central Excise Tariff. During the year 1978, it was entitled to the benefit of Notification No; 198/76, dated 16-6-76, by which, 25% duty exemption had been granted inter alia for the goods manufactured by the assessee. The assessee, however, cleared the goods manufactured by it from 7-3-78 to 31-3-78 without availing that benefit of duty exemption. Though it would have been entitled to receive refund had a claim been made within the period of limitation provided for in Rule 11 of the Central Excise Rules, viz. six months from the date of payment of duty, it filed the claim for refund only in 13-8-79. Long after the period of six months from the date of payment had expired. It sought to maintain it’s Claim by contending that as it had twelve plants spread all over India, it could not make the claim for refund until after the Assistant Collector had advised the respondent about the determination of the base period and base clearance.
That contention of the assessee was rejected by the Assistant Collector, and also by the Collector but found favour with the Tribunal. Being aggrieved by that order of the Tribunal, the revenue sought the reference.
The question referred to us by the Tribunal is as to whether in the facts and circumstances of the case, the date of declaration would be the relevant date for the purpose of claims of refund under Rule 11 of the Central Excise Rules.
The Notification under which 25% duty exemption was given to the products manufactured by the assessee no where requires the Assistant Collector to determine the base period or the base clearance and intimate the same to the assessee to enable it to claim refunds or use that determination for any other purpose. The Notification is self-contained. It defines the base period. It prescribes the mode of calculating the base clearance. The quantity actually cleared is known fully to the manufacturer. The determination of these two is merely an arithmetic exercise which was required to be carried out by the assessee. The Tribunal was wholly in error in holding that there was any duty cast on the Assistant Collector to make such calculations for the assessee and supply the same to the assessee. The reason given by the Tribunal for allowing the assessee’s appeal are wholly untenable.
The questions referred to us is not happily worded. It seems to assume that there is need for declaration of a base period and base clearance. No such declaration is contemplated in the notification. All that is done therein is to set out the goods in respect of which concessions is given, the period for which it is given, the pre-conditions required to be met for claiming the benefit, the period which is to be taken as the base period, and the clearance to be calculated for that base period and the amount of benefit which can be claimed, if the clearances during the subsequent relevant exercise year exceeds clearance during the base year. The entire exercise is required to be carried out by the assessee, if it wants to claim any refund on the basis of that notification, and that task is not required to be performed by the Revenue for the assessee.
We, therefore, hold that the determination of the base period and base clearance referred to in the Notification No. 198/76 is initially required to be done by the assessee for the purpose of claiming, any refund, and delays in making such claim for refund cannot be ignored on the ground that the revenue is required to make the determination and communicate the same to the assessee to enable it to make a claim for refund.
The question referred to us is, therefore, answered in favour of the revenue and against the assessee. The assessee shall pay costs to the revenue in the sum of Rs. 2,000/-“.
4. We have heard ld. DR Shri C. Mani for the revenue and Shri Muthu Venkataraman for the assessee.
5. Ld. DR submits that in view of the question referred having been answered in favour of the revenue and against the assessee therefore the Order-in-appeal of the Commissioner is required to be upheld and the denial of refund is justified. He also submitted that the cost of Rs. 2,000/- should be directed to deposit by the assessee.
6. After due hearing, the final order under Section 35K of the Central Excise Act, 1944 is passed as follows :
The appeal filed by the appellant stands disposed off in terms of the Hon’ble High Court order and inasmuch as the appellant shall not be entitled for the benefit of refund claim by them and they should deposit with the revenue an amount Rs. 2,000/- as cost imposed by the Hon’ble High Court.