1990 (11) TMI 279 - AT - Central Excise

Summary

Issues:
1. Appeal against rejection of refund claim.
2. Validity of communication dated 11-2-1985 as a basis for appeal.
3. Nature of the Assistant Collector's order dated 4-12-1981.
4. Proper disposal of refund claim by the Assistant Collector.
5. Consideration of exemption claim and duty payment under protest.

Analysis:

Issue 1: Appeal against rejection of refund claim
The appeal was filed by M/s Keymer Bagshawe Mfg. Co. Private Ltd. challenging the rejection of their refund claim by the Collector of Central Excise (A), Calcutta. The Collector had dismissed the appeal on the grounds of nullity, stating that the appeal was against a letter and not a formal appealable order.

Issue 2: Validity of communication dated 11-2-1985 as a basis for appeal
The appellants contended that the communication dated 11-2-1985, which was the basis for rejecting their appeal, was not a formal appealable order. They argued that the Assistant Collector's order dated 4-12-1981, against which the communication was made, was also not a formal order and had been passed in violation of natural justice.

Issue 3: Nature of the Assistant Collector's order dated 4-12-1981
The Assistant Collector's order dated 4-12-1981 was examined, and it was found to be a non-speaking order lacking clarity and completeness. The order directed the appellants to obtain orders from the competent authority for exemption, which created confusion regarding the rejection of the refund claim. The order was deemed premature and incomplete, making it non-appealable.

Issue 4: Proper disposal of refund claim by the Assistant Collector
The Assistant Collector's handling of the refund claim was criticized for lack of clarity and proper adjudication. The appellants had promptly represented against the order but were not informed by the department about the correct course of action. The lack of communication and guidance from the department led to confusion and delayed resolution of the refund claim.

Issue 5: Consideration of exemption claim and duty payment under protest
The appellants had claimed exemption from Central Excise duty in a letter dated 16-5-79, stating that they were paying duty under protest until their exemption case was finalized. This claim, along with the payment under protest, highlighted the need for a thorough review of the refund claim and exemption request to ensure proper adjudication.

In conclusion, the Appellate Tribunal found that the refund claim had not been disposed of properly, and the Assistant Collector's order lacked clarity and completeness. The matter was remanded to the jurisdictional Assistant Collector for a fresh review and proper disposal in accordance with the law. The appeal was allowed, setting aside the previous order and emphasizing the importance of addressing the submissions made by the appellants for a fair and just resolution.