1986 (2) TMI 174 - AT - Central Excise

Summary

Issues Involved:
1. Whether the refund application was time-barred.
2. Whether the filing of the refund claim with the Superintendent instead of the Assistant Collector was valid.
3. Whether the payment of duty was made under protest.

Issue-wise Detailed Analysis:

1. Whether the refund application was time-barred:
The appellants filed a refund application on 5-12-1980, which was received by the Assistant Collector on 13-1-1981. The Assistant Collector rejected the application as time-barred, stating it was received after the six-month period prescribed under Section 11-B of the Central Excises and Salt Act, 1944. The appellants argued that the application was filed within the time limit when submitted to the Superintendent, citing a Trade Notice from the Kanpur Collectorate that allowed refund claims to be lodged with the Superintendent. The Tribunal noted that the appellants had submitted the claim within the time limit to the Superintendent, who is part of the Assistant Collector's organization. The Tribunal held that the claim should not be considered time-barred based on the date of receipt by the Assistant Collector.

2. Whether the filing of the refund claim with the Superintendent instead of the Assistant Collector was valid:
The appellants contended that filing the refund claim with the Superintendent was in accordance with existing practice, supported by a Trade Notice from the Kanpur Collectorate. The Tribunal observed that the Superintendent is a part of the Assistant Collector's organization and that the claim was addressed to the Assistant Collector through the Superintendent. The Tribunal noted that the practice of filing claims with the Superintendent was acknowledged and not denied by the Department. Consequently, the Tribunal concluded that the claim should be considered as filed within time when submitted to the Superintendent.

3. Whether the payment of duty was made under protest:
The appellants argued that the duty was paid under protest, and therefore, the time limit under Section 11-B should not apply. They stated that there was no prescribed form for filing a protest at the relevant time. The Tribunal did not find it necessary to delve into this issue as the appeal was allowed on the ground that the refund claim was filed within the stipulated period. However, in a separate judgment, it was noted that the letter dated 14-6-1980 could not be considered as a protest, and the alternative plea was rejected.

Separate Judgments:
A separate judgment by another member disagreed with the majority view, emphasizing strict adherence to the statutory requirement that refund claims must be filed with the Assistant Collector. This member argued that the Trade Notice from the Kanpur Collectorate did not have binding force on the Madras Collectorate and that statutory provisions should be followed strictly. The member concluded that the refund application was not filed within the prescribed time limit and should be rejected.

Final Order:
The matter was remanded to the Assistant Collector to decide the question of limitation, giving the appellants an opportunity to show that a practice existed in the Madras Collectorate whereby refund applications were received by the Superintendent on behalf of the Assistant Collector. If such a practice is established, the application would be considered within time and should be dealt with on its merits.