1997 (11) TMI 193 - AT - Central Excise

Summary

Issues Involved:
1. Time-barred refund claim under Section 11B of the Central Excise Act, 1944.
2. Whether the request for condonation of delay in filing registration documents can be treated as a refund claim.
3. Applicability of the concessional rate of duty under Notification No. 162/86.
4. Whether the payment of duty under the orders of the Asstt. Collector can be treated as payment under protest.

Issue-wise Detailed Analysis:

1. Time-barred refund claim under Section 11B of the Central Excise Act, 1944:
The ld. Commissioner of Central Excise (Appeals) held that the refund claim was time-barred as it was filed beyond the six-month period stipulated under Section 11B. The relevant date for calculating the six-month time limit was between September 1992 to December 1992, while the refund claim was filed on 27-8-1993. The Tribunal noted that the request for condonation of delay was filed on 19-6-1993, and the delay was condoned by the Asstt. Collector on 20-7-1993. It was held that the refund claim could be filed only after the delay in submission of the registration documents was condoned, and thus, the date of condonation of delay was material. The refund claim was filed within 38 days of condonation, which was not deemed unreasonable.

2. Whether the request for condonation of delay in filing registration documents can be treated as a refund claim:
The Tribunal examined whether the request for condonation of delay should be treated as a date for filing the refund claim. It referred to the decision in M/s. Sirpur Paper Mills Ltd., where it was held that a letter requesting reclassification to claim a refund constituted a claim for a refund. The Tribunal found that the request for condonation of delay was essentially a claim for a refund since the lower rate of duty was admissible only when the car was registered as a taxi. The Tribunal concluded that the date of condonation of delay should be considered the starting point for filing the refund claim.

3. Applicability of the concessional rate of duty under Notification No. 162/86:
The Tribunal noted that the concessional rate of duty under Notification No. 162/86 was available if the saloon cars were used as taxis and the registration documents were submitted within three months or an extended period if condoned. The appellants had followed a procedure agreed upon with the Department, where they debited the differential duty suo motu and filed the registration documents later. The Tribunal held that the notification allowed for an extension of time, and thus, the period for filing the refund claim should start from the date the delay was condoned.

4. Whether the payment of duty under the orders of the Asstt. Collector can be treated as payment under protest:
The ld. Counsel referred to the Supreme Court's decision in M/s. Mafatlal Industries Ltd., which held that duty paid under court orders pending appeal/reference/writ petition is considered payment under protest. The Tribunal noted that the appellants had paid the duty under the orders of the Asstt. Collector, a quasi-judicial authority, and thus, the payment could be treated as under protest.

Conclusion:
The Tribunal held that the refund claim was not time-barred, as the date of condonation of delay should be the starting point for the limitation period. The refund claim was filed within a reasonable period after condonation. The Tribunal allowed the appeal, subject to the ruling of the Apex Court in M/s. Mafatlal Industries Ltd.