Collector Of C. Ex. vs Simplex Mills Co. Ltd. on 23 March, 1987

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Customs, Excise and Gold Tribunal – Delhi
Collector Of C. Ex. vs Simplex Mills Co. Ltd. on 23 March, 1987
Equivalent citations: 1989 (44) ELT 259 Tri Del

ORDER

G. Sankaran, Vice-President

1. The facts of the case, as briefly stated in the impugned order, are that the respondents are a composite mill manufacturing, among others, cotton fabrics. During the period from 15-7-1977 to 31-7-1977, they paid excise duty in excess of the old rate without taking into consideration changes made in the rate structure on 15-7-1977 since these changes were made known to them much later. They had requested the Range Superintendent to refund the excess duty paid by making a suitable endorsement in the R.T. 12 return for the month of July ’77. The Range Superintendent did not allow the refund/credit and directed to file a separate refund claim to the proper officer and they did so accordingly. Since this refund claim was made after lapse of six months, Assistant Collector of Central Excise, Division ‘E’, Bombay, has rejected the same as time-barred under Rule 11 of the Central Excise Rules, 1944.

2. In appeal the Appellate Collector of Central Excise, Bombay, held that having regard to the fact that (a) during the material period, fabrics were cleared at a higher rate of duty than required, (b) the appellants had specifically pointed out in the RT12 showing the excess payment of Rs. 83,111,21, (c) the refund claim was filed within a fortnight from the date on which Superintendent refused to give credit of excess duty paid by them which according to the instructions then existing ought to have been given and (d) refund claim pertained to the period when Rule 11 prior to its substitution with effect from 6-8-1977 as in vogue, and allowed the refund claim to the extent of Rs. 83,111,21 which was originally claimed. It is against this order that the Collector of Central Excise, Bombay, has preferred the present appeal.

3. The contention for the appellant is that since the respondent was aggrieved by the assessment order made by the Superintendent of Central Excise on the RT 12 (Assessment) return for the month of July, 1977 (submitted in August 1977) denying credit of the excess amount pointed out specifically by the respondent in the assessment return, the respondent should have preferred an appeal against the assessment order. Having failed to do so, the refund claim filed (at the instance of the Superintendent) on 30-8-1978 i.e. after one year from the payment of duty, was barred under Central Excise Rule 11. Further the limitation period was revised by Section 11A as six months with effect from 6-8-1977. In the circumstances, the Appellate Collector erred in holding that the claim was in time taking into account the fact of mention of the excess payment in the assessment return by the respondent.

4. The respondent was not present in the Court on the date of hearing of the appeal but had filed written submissions. We have, therefore, heard Shri K.C. Sachar, D.R. and perused the record.

5. For the appellant, Shri Sachar contended that, for the reasons stated in the appeal memorandum, the impugned order was not correct.

6. We have carefully considered the submissions of both sides. Rule 173I of the Central Excise Rules provides that the proper officer shall assess the duty due on the goods removed and complete the assessment memorandum on the RT12 returns on the basis of the information contained in the return and after such further inquiry as the proper officer may consider necessary. A copy of the return so completed is required to be sent to the assessee. Sub-rule (2) provides that the duty determined and paid by the assessee under Rule 173 F shall be adjusted against the duty assessed by the proper officer (as stated above) and where the duty so assessed is more than the duty determined and paid by the assessee, the assessee shall pay the deficiency by making a debit in the account-current within 10 days of the receipt of the assessed return from the proper officer and where such duty is less, the assessee shall take credit in the account-current for the excess on receipt of the assessment order in the copy of the return duly countersigned by a Superintendent of Central Excise. The rule does not envisage a separate application for refund being filed by the assessee. Trade Notice No. 152 (M.P)/General/17/1978, dated 8-5-1978 issued by the Collector of Central Excise, Bombay (a copy of which has been filed by the respondent) expressly modified the pre-existing position whereunder in case of over-payment on account of late receipt of information regarding reduction in tariff value/rate of duty etc. the assessee had to file a refund claim for the excess amount and follow the usual refund procedure. The notice authorises the assessees to claim refund of duty in such cases by making suitable remarks in the RT 12 return and P.L.A. (Personal Ledger Account) while submitting the same. It requires the Superintendent of Central Excise in charge of the factory to make suitable endorsements on the assessment return (while assessing the same) authorising the assessee to take credit of the excess amount in his P.L.A.

7. In the present case, the Appellate Collector’s finding is that the assessee has only followed the provisions of the above Trade Notice. The Superintendent does not appear to have done his duty as enjoined in Rule 1731 read with the Collector’s Trade Notice. There is no justification for denying the refund due to the appellants for the default of the Superintendent of Central Excise.

8. In the result, we uphold the impugned order and reject this appeal.

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