1993 (10) TMI 166 - AT - Central Excise

Summary

Issues:
1. Appeal against order of Collector (Appeals) allowing Revenue's plea for time-barred refund claim.
2. Appellants' contention of meeting requirements for filing protest letter and eligibility for exemption under Notification 80/80.
3. Lack of availability of RT 12 returns and gate passes due to flood.
4. Discrepancy in Collector's order regarding endorsement of payment under protest and lack of notice to appellants.

Analysis:
1. The appeal was filed against the order of the Collector (Appeals) allowing the Revenue's plea that a refund claim of Rs. 35,837.29 for the period 1-4-1982 to 30-9-1982 was time-barred as the claim was filed on 30-3-1983. The Collector (Appeals) found that the protest letter did not incorporate the claim for exemption under Notification 80/80 and that the RT 12 return and gate passes were not endorsed as required under Rule 233B of the Central Excise Rules, leading to the denial of the refund claimed by the appellants.

2. The appellants argued that the Assistant Collector had sanctioned the refund after considering all aspects, including the protest letter filed by them regarding payment of duty and their eligibility for exemption under Notification 80/80. They claimed to have met all requirements for filing the protest letter and stated that the RT 12 returns and gate passes were lost during a flood. The appellants contended that the original authority sanctioning the refund should be presumed to have verified the endorsement in the returns and passes before granting the refund.

3. The lack of availability of RT 12 returns and gate passes due to a flood was highlighted by the appellants, leading to an adjournment for the Departmental Representative to provide copies of the documents. However, the documents were not produced, and the appellants argued that the presumption should be in their favor due to the absence of these documents.

4. The Tribunal observed that the refund was sanctioned by the Assistant Collector after considering all relevant documents, including the protest letter. It noted that the Collector did not produce evidence to establish the endorsement in the returns and passes as directed. The Tribunal held that the Collector's observation regarding the endorsement was made without notifying the appellants, and there was no verification done in this regard. The Tribunal concluded that the appellants' plea should be allowed, as there was no mention of the endorsement in the Collector's order or grounds of appeal, and remanding the case for further consideration would not serve any purpose due to the unavailability of old records.