1989 (3) TMI 241 - AT - Central Excise

Issues Involved:
1. Limitation for refund claims under Rule 11 read with Rule 173J.
2. Validity of duty payments without protest or provisional assessment.
3. Application of the Supreme Court judgment in Doaba Cooperative Sugar Mills.
4. Relevance of the Tribunal's decision in Curti Chemicals Pvt. Ltd. case.

Detailed Analysis:

1. Limitation for Refund Claims Under Rule 11 Read with Rule 173J:

The primary issue was whether the refund claims filed by the appellants on 30-7-1975 for excess payments made from 1-3-1974 to 29-7-1974 were barred by limitation under Rule 11 read with Rule 173J. Rule 11 stated that no duties or charges paid through inadvertence, error, or mis-construction shall be refunded unless claimed within three months. Rule 173J extended this period to one year. The appellants argued that they had staked their claim for assessment at 20% ad valorem in their letter dated 19-4-1974, which should be considered as the initial claim, thus making the formal claims filed on 30-7-1975 a continuation of this initial claim. The Tribunal agreed, holding that the claims were not barred by limitation for payments made after 19-4-1974.

2. Validity of Duty Payments Without Protest or Provisional Assessment:

The appellants did not pay the excess duty under protest nor was there any provisional assessment in terms of Rule 9B. They contended that their letter dated 19-4-1974 should be considered as a clear staking of their claim for assessment at the ad valorem rate, and thus, the limitation under Rule 11 was not applicable. The Tribunal supported this view, noting that the letter of 19-4-1974 was a clear staking of their claim, and the formal claims filed later were merely a continuation of this initial claim. Therefore, the payments made after 19-4-1974 were not barred by limitation, even though they were not made under protest or provisional assessment.

3. Application of the Supreme Court Judgment in Doaba Cooperative Sugar Mills:

The Department argued that the Supreme Court judgment in Doaba Cooperative Sugar Mills, which stated that quasi-judicial authorities under the Central Excise Act and Rules were bound by the provisions of the Act and Rules, and that claims for refund of duty were governed by the limitation laid down therein, applied to the present case. However, the Tribunal found that this judgment did not apply because, in the present case, the appellants had clearly staked their claim in time, unlike in the Doaba case where the erroneous refund was sanctioned and paid without such a claim.

4. Relevance of the Tribunal's Decision in Curti Chemicals Pvt. Ltd. Case:

The Department also relied on the Tribunal's decision in Curti Chemicals Pvt. Ltd. case, where the law of limitation was held to be a procedural law that governed all proceedings instituted thereafter. However, the Tribunal found that this decision was not relevant to the present case as there had been no change in the law of limitation during the period material to the case. The Tribunal noted that the appellants had staked their claim well in time, and the formal claims filed later were a continuation of this initial claim, thus not barred by limitation.

Conclusion:

The Tribunal held that the refund claims filed by the appellants were not barred by limitation for payments made after 19-4-1974, based on their letter staking a clear claim for assessment at 20% ad valorem. The orders of the lower authorities were set aside to this extent, and the matter was remanded to the Assistant Collector to dispose of the claims on their merits, considering the letter dated 19-4-1974 as the date of making the claim. The Tribunal did not find it necessary to refer to other authorities cited by the appellants.

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