1985 (1) TMI 178 - AT - Central Excise

Summary

Issues:
1. Entitlement to duty-exemption for a specified period prior to 1-5-1973.
2. Whether the demand for recovery of the amount of refund is barred by time.
3. Modification of the order of the Assistant Collector regarding refund allowed to the party for the period up to 28-2-1973.
4. Confirmation of notice against the assessee for part of the period subsequent to 1-3-1973.
5. Allegations of suppression of material facts and mis-statement by the party.
6. Validity of the notice issued by the Collector of Central Excise for recovery of the refund.
7. Application for refund after a favorable order by the Central Board of Excises & Customs.

Analysis:

1. The appeals before the Tribunal arose from an Order-in-Appeal by the Collector (Appeals) regarding duty-exemption entitlement. The Collector partly upheld the assessee's contention for duty-exemption before 1-5-1973 but held subsequent clearances assessable to duty as per Notification No. 67/73. The demand for recovery of refund for the latter period was upheld.

2. The Collector (Appeals) rejected the appellants' plea that the demand for recovery of refund was time-barred. The Tribunal found that the party's failure to disclose the change in exemption notification led to the erroneous refund, justifying the extended period of limitation for recovery.

3. The Collector of Central Excise appealed against the modification of the refund order by the Collector (Appeals). The dispute revolved around the period for which the refund was allowed and the party's contention that no amount was realized during the relevant period.

4. The assessee's appeal challenged the confirmation of the notice for recovery of refund post-1-3-1973. The issue centered on the rejection of their plea regarding the limitation under Section 11A of the Act.

5. The Tribunal considered both appeals together and found that the demand for recovery was barred by time due to the absence of suppression or misstatement by the party. The demand was based on the amendment to the notification and withdrawal of exemption, not on any misrepresentation by the assessee.

6. The Tribunal concluded that the notice for recovery issued by the Collector of Central Excise was beyond the permissible period of limitation under Section 11A. The demand was considered time-barred, and the appeal of the Collector of Central Excise was dismissed, while the appeal of the party was allowed on the question of the demand for recovery being barred by time.