1985 (1) TMI 199 - AT - Central Excise

Summary

Issues Involved:
1. Jurisdiction and appealability of the Superintendent's order.
2. Limitation period for filing refund claims under Rule 11 of the Central Excise Rules, 1944.
3. Whether the appellants' payments were made under protest.
4. Deductibility of distribution charges as equalized freight in the assessable value.

Detailed Analysis:

1. Jurisdiction and Appealability of the Superintendent's Order:
The appellants challenged the Superintendent's order dated 31-3-1970, which determined the assessable value of their products. The Superintendent incorrectly stated that a representation against his order lay to the Assistant Collector. However, as per Section 35 of the Central Excises and Salt Act, 1944, and Rule 213 of the Central Excise Rules, 1944, an appeal against the Superintendent's order should have been made to the Deputy Collector. The Assistant Collector was not authorized to hear such appeals. The representation to the Assistant Collector was thus neither a valid appeal nor to the correct forum. Consequently, the Superintendent's order became final as it was not appealed to the proper authority.

2. Limitation Period for Filing Refund Claims:
The appellants filed refund claims on 16-12-1974 for the period from 1-3-1970 to 25-9-1974. These claims were rejected by the Assistant Collector as time-barred under Rule 11 of the Central Excise Rules, 1944, which required refund claims to be filed within three months from the date of payment or adjustment. The provision for saving claims made under protest was introduced only on 6-8-1977 and was not applicable to claims filed before this date. Therefore, claims for periods beyond three months prior to 16-12-1974 were barred by limitation.

3. Whether the Appellants' Payments Were Made Under Protest:
The appellants argued that their payments were made under protest, citing their letters dated 7-3-1970, 10-3-1970, and 21-5-1970. The Tribunal noted previous decisions where similar letters were deemed as protests, thus keeping the claims alive. The Central Government, in a parallel case, had also accepted that the appellants' letter dated 21-5-1970 constituted a protest. The Tribunal agreed with this view, holding that the letter was a protest, thus protecting the appellants' claims from being time-barred.

4. Deductibility of Distribution Charges as Equalized Freight:
On merits, the appellants contended that the charges of 30 paise per crate for local deliveries and 70 paise per crate for out-station deliveries were in the nature of equalized freight and should be excluded from the assessable value. The Supreme Court in Union of India v. Bombay Tyre International (1983 E.L.T. 1896) held that equalized freight is a permissible deduction. The Tribunal remanded the matter to the Collector of Central Excise (Appeals) for a fresh decision, taking into account the latest legal position as laid down by the Supreme Court and treating the claims as within time.

Conclusion:
The appeals were disposed of by setting aside the combined Order-in-Appeal dated 24-3-1977 and remanding the matters to the Collector of Central Excise (Appeals), New Delhi, for fresh consideration on merits, in light of the Supreme Court's judgment and treating the claims as within the limitation period.

Separate Judgment:
Member (Judicial) M. Gouri Shankar Murthy dissented, arguing that the orders of the Superintendent were final as they were not appealed to the correct forum. He held that the refund applications were barred by limitation and should be dismissed. However, the majority view prevailed, leading to the remand of the cases for fresh consideration on merits.