1982 (5) TMI 182 - CGOVT - Central Excise

Summary

Issues:
1. Time-barred refund claim rejection by Assistant Collector.
2. Lack of evidence for protest lodged by petitioners.
3. Applicability of General Limitation Act.
4. Jurisdiction of levy and collection of duty on speciality oils.
5. Classification of speciality oils under Tariff Item 68.
6. Time-barred refund claim for the period 1-3-75 to 1-11-75.
7. Applicability of Limitation Act for the period 20-7-71 to 28-2-75.
8. Direction for refund to petitioners for the duty paid in the period 29-12-73 to 28-2-75.

Analysis:

1. The Assistant Collector rejected the refund claim as time-barred since it pertained to a period before a specific order communicated on 8-10-75 regarding speciality oils falling outside the purview of Tariff Item 11B. The claim was rejected based on Rule 11 of the Central Excise Rules.

2. The petitioners claimed they had lodged a protest in 1971, but the Appellate Collector found no evidence of this protest in the case records. The Appellate Collector also rejected the contention that duty was paid under protest and under a mistaken belief of law, holding that the General Limitation Act would be applicable.

3. The Appellate Collector determined that the goods were not wrongly charged to duty under Tariff Item 11B, rejecting the appeal on these grounds.

4. In the revision application, the petitioners argued that the levy and collection of duty on speciality oils under Item 11B was without jurisdiction and should be implemented from the beginning based on a clarification issued by the Assistant Collector.

5. The Government observed that speciality oils were classified under Tariff Item 68, and the petitioners obtained a license under this item on 4-11-75, paying duty accordingly. This confirmed that prior to 1-8-75, the goods did not fall under the Central Excise Tariff, rendering the duty collected without jurisdiction for the pre-1-3-75 period.

6. For the period 1-3-75 to 1-11-75, the petitioners were liable to pay duty under Tariff Item 68, and the refund claim for this period was time-barred. However, for the period 29-12-73 to 28-2-75, when the goods were not classifiable under any Central Excise Tariff item, the petitioners were entitled to a refund under the Limitation Act.

7. Considering the legal position and the fact that the burden of the indirect tax had been passed to customers, the Government directed a refund for the duty paid in the period 29-12-73 to 28-2-75, remanding the case to the Assistant Collector for necessary sanction. The revision application was allowed in part with this direction.