1990 (2) TMI 179 - AT - Central Excise

Summary

Issues Involved:
1. Whether the appeal against the classification list was time-barred.
2. Whether the appellants were entitled to a refund for the period from 27-8-1983 to 31-10-1985.

Detailed Analysis:

1. Whether the appeal against the classification list was time-barred:

Facts and Arguments:
The appellants, M/s. Imperial Malts Pvt. Ltd., contested the decision of the Assistant Collector of Central Excise, Rohtak, which disallowed their claim for exemption under Notification No. 55/75. They argued that they had not received the adjudication order dated 7-6-1983 until 13-4-1987. The Collector (Appeals) dismissed their appeal as time-barred, presuming the order was served within a reasonable time based on a registered post dated 7-6-1983.

Legal Provisions and Presumptions:
Section 37C of the Central Excises and Salt Act, 1944, and Section 27 of the General Clauses Act were pivotal. These sections establish that service is deemed effected by properly addressing and sending a document by registered post unless the contrary is proved. The presumption of service under Section 27 is rebuttable.

Court's Observations:
The Tribunal noted that the Collector (Appeals) did not provide the appellants an opportunity to rebut the presumption of service. The appellants submitted an affidavit from their Technical Director, denying receipt of the order until 13-4-1987. The Tribunal found that the Collector (Appeals) should have allowed the appellants to rebut the presumption of service.

Decision:
The Tribunal set aside the impugned order regarding the classification list and remanded the case to the Collector (Appeals) to decide afresh after giving the appellants an opportunity to rebut the presumption of service.

2. Whether the appellants were entitled to a refund for the period from 27-8-1983 to 31-10-1985:

Facts and Arguments:
The appellants sought a refund of Rs. 29,67,790.87 for duty paid on their products, citing a Delhi High Court judgment that exempted Malt & Malt Extracts from duty under Notification No. 55/75. The Assistant Collector rejected the refund claim for the period before 4-9-1985, stating the appellants were not entitled to the exemption. The Collector (Appeals) upheld this decision, linking it to the time-barred status of the appeal against the classification list.

Court's Observations:
The Tribunal noted that the outcome of the refund claim was dependent on the decision regarding the classification list appeal. Since the classification list appeal was remanded for reconsideration, the refund claim also needed reevaluation.

Decision:
The Tribunal set aside the impugned order regarding the refund claim and remanded the case to the Collector (Appeals) to decide afresh in light of the decision on the classification list appeal.

Conclusion:
Both appeals were allowed by remand, directing the Collector (Appeals) to reconsider the cases after affording the appellants an opportunity to rebut the presumption of service and to decide the refund claim based on the outcome of the classification list appeal.