1995 (5) TMI 139 - AT - Central Excise

Summary

Issues Involved
1. Refund of duty claims and their rejection based on limitation and procedural grounds.
2. Requirement of Court Fees under amended Section 35B(6) of the Central Excises and Salt Act, 1944.
3. Validity of producing a xerox copy versus a duly authenticated copy of the impugned order.

Issue-Wise Detailed Analysis

1. Refund of Duty Claims and Their Rejection
The appellants/applicants filed appeals against orders passed by the Collector of Central Excise (Appeals), Calcutta, which dismissed their claims for refunds of duties paid in excess. In E-106/94 (M.A. 176/94), the claim for a refund of Rs. 15.06 lakh was rejected on the grounds of being barred by limitation. In E(SB) 4075/94 (M.A. 148/94), the claim for a refund of Rs. 1,00,899.78 was rejected because the appellants/applicants failed to indicate whether the burden of duty was passed to the buyers. The Collector (Appeals) directed the Assistant Collector to decide the claim de novo under the amended provision of Section 11B of the Central Excises and Salt Act, 1944, read with Rule 173 of the Central Excise Rules, 1944.

2. Requirement of Court Fees Under Amended Section 35B(6)
The appellants/applicants contended that no Court Fees were required under the amended Section 35B(6) of the Central Excises and Salt Act, 1944, as their appeals did not involve any demand of duty or penalty levied by a Central Excise Officer. They argued that the amended section specifies fees only for cases involving demands of duty and penalties. The respondents, represented by Junior Departmental Representatives, countered that the appeals related to duty elements and thus required the prescribed fees.

The Tribunal examined the unamended and amended provisions of Section 35B(6), noting that the amendment increased the fee for appeals where the amount of duty demanded and penalty levied exceeded Rs. 1 lakh. The Tribunal concluded that the term "relates" in Section 35B(6) has a wider connotation, encompassing claims for refunds of duties paid in excess. Therefore, the appellants/applicants were required to pay the prescribed fees of Rs. 200 or Rs. 1,000, depending on the amount involved in each appeal.

3. Validity of Producing a Xerox Copy Versus a Duly Authenticated Copy
In M.A. 148/94, the registry objected to the appellants/applicants producing a xerox copy of the impugned order instead of a duly authenticated copy. The appellants/applicants cited Section 36B(1)(b) of the Central Excises and Salt Act, 1944, which permits the production of a facsimile copy of a document. However, the Tribunal noted that a xerox copy could be tampered with, unlike a facsimile copy. Therefore, the registry's objection was valid, and the appellants/applicants were required to produce a duly authenticated copy within one month from the date of receipt of the order.

Separate Judgments
Both members of the Tribunal agreed on the findings. Member (T) added that the legal connotation of "fee" is a charge for rendering service and emphasized that the fee should be proportionate to the cost of services rendered. Accepting the appellants/applicants' contention would lead to irrational outcomes, where some appeals would be free of charge while others would not, despite similar services being rendered. The expression "demand of duty" applies to both the assessee and the Department, and "penalty" should be understood broadly to include fines imposed in lieu of confiscation. The Tribunal concluded that the fee is required for both categories of appeals, and the registry's demand for fees was justified. The plea regarding the facsimile copy was also rejected, as certified copies are part of the legal procedure and not evidence under Section 36B(1)(b).