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TMI Blog1986 (2) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... officer. The proper officer is required to assess the duty on the goods removed and to complete the assessment on the basis of information contained in the returns filed by the assessee. The duty is determined and paid by the assessee under Rule 173-F of the Central Excise Rules, 1944. This is required to be adjusted against the duty assessable by the proper officer under Rule 173-1. By Notification No. 65/80-CE dated 7-6-1980 Urea and Di-Ammonium Phosphate manufactured by the appellants were exempted from the whole of the excise duty leviable on them. The appellants state that this notification was not received in time by the Superintendent of Central Excise, Tuticerin, on the 7th June and he insisted on the applicant paying duty before clearing the goods, pending receipt of the notification. A return in Form RT-12 as required by Rule 173-Q was filed for the month of June 1980 on 5-7-1980 and this assessment was completed by the Superintendent of Central Excise, Tuticorin, on 22-8-1980. As per Section 11-B of the Central Excises and Salt Act (effective from 17-11-1980) any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge Officer on behalf of the Assistant Collector for the purpose of computing the time limit of six months under Section 11-B of Central Excises and Salt Act, 1944. The appellants have also cited a decision in the case of Shri Ambica Khandsari Udyog, Saharanpur v. Collector of Central Excise, Meerut - 1985 (21) E.L.T. 281 (Tribunal) = 1985 ECR 1224 (Cegat). In the said case it was held that the Superintendent has to be considered as a part of the Assistant Collector s office. It is claimed that this decision fully covers the main point in dispute and if this is conceded then the appeal should be allowed on this ground alone. The appellants have also cited one other decision of the Government of India in the case of Auto and Metal Engineers reported in 1982 E.L.T. 478 (G.O.I.). Furthermore, it is stated that the assessment in their case was completed by the Superintendent of Central Excise, Tuticorin only on 22-8-1980 and that this was the date relevant for the purpose of the explanation of Section 11B of the Central Excises and Salt Act, 1944. The appellants have emphasised that for the purpose of the time limit, what is relevant is the date on which the application is made to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no prescribed form of protest at that point of time and that this was done much later and that, therefore, their letter in this respect should be considered adequate for this purpose. It seems to us that although it is possible, strictly in terms of law, to distinguish between the Assistant Collector of Central Excise and the Superintendent of Central Excise, yet, as far the spirit of the law is concerned, the claim of the appellants cannot be barred on grounds of limitation merely on the basis that it was filed before the Superintendent and not with the Assistant Collector. We observe that the claim was addressed to the Assistant Collector, through the Superintendent of Central Excise, who is normally called a Range Officer or Sector Officer of the Divisional Office set-up of the Assistant Collector and therefore in fact a part of the organisation headed by the Assistant Collector. The appellants have cited trade practice in their favour and referred to a Kanpur Collectorate Trade Notice which is not only not denied but it is fairly conceded by the learned Departmental Representative that in actual practice claims were being received by the Superintendent on behalf of the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have any jurisdiction in respect of such claim. Explanation. - for the purposes of this section, - (A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India : (B) relevant date means,- (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of dispatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid ; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the ground that the refund application was received in his office after the expiry of six months in terms of provisions of Section 11B of the Central Excises and Salt Act, 1944. My learned Brother Shri K. Prakash Anand has relied on the judgment of the North Regional Bench in the case of Shri Ambica Khandsari Udyog, Saharanpur v. Collector of Central Excise, Meerut reported in 1985 (21) E.L.T. 281 (Tribunal)=1985 ECR 1224 and the Trade Notice No. 206/ 1980 issued by the Kanpur Collectorate. My learned Sister Smt. S. Duggal speaking on behalf of the Court has dissented to my earlier judgment in the case of Hindustan Motors Ltd. v. Collector of Central Excise and Customs, West Bengal, Calcutta reported in 1984 (16) E.L.T. 647. In the said judgment it has been mentioned that the filing of refund application was procedural, and the practice of filing the refund application in terms of Trade Notice No. 206/1980 issued by the Kanpur Collectorate was accepted. Tax statutes have to be construed strictly, prior to 6-8-1977 the prevailing rule 11 was as follows:- Rule 11. No refund of duties or charges erroneously paid, unless claimed within three months. - No duties or charges wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Hindustan Motors Ltd. v. CCE, Calcutta reported in 1984 (16) E.L.T. 647 no Trade Notice was brought to my notice, even if the Kanpur Collectorates Trade Notice would have been referred to me, the same would not have any binding effect. Trade Notice cannot go over and above the provisions of statute. Trade Notice of one Collectorate has no binding force on the other Collectorate. In the present matter citing of the Kanpur Collectorate Trade Notice does not help the Appellants, as the matter before us relates to Madras Collectorate. 14. In my earlier judgment in the case of Hindustan Motors Ltd. v. Collector of Central Excise, West Bengal, Calcutta reported in 1984 (16) E.L.T. 647,1 had relied on the Hon ble High Court Judgment in the case of Inchek Tyres v. Assistant Collector of Central Excise reported in 1979 E.L.T. J 236. The Hon ble Mr. Justice Bimal Chandra Basak had held that even if the amount was unlawfully collected petitioner s right to refund is covered by the statute, it provided the certain conditions which have not been satisfied in this case. It is not open to the Petitioner to contend that the Petitioner has such a right independent of the said statute. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the procedure for the filing of refund application, the very purpose of the provisions of the statute will be defeated. The Hon ble Supreme Court in the case of Miles India Ltd. v. Assistant Collector of Customs reported in 1985 ECR 289 had held that the Customs authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided there for under Section 27(1) of the Customs Act, 1962. The Hon ble Supreme Court had held in the case of Polstar and Co. Ltd. v. Addl. Commissioner of Sales-tax, New Delhi reported in AIR 1978 S.C. 897 that a statutory enactment must ordinarily be construed according to the plain natural meaning of its language and that no words should be added, altered or modified unless it is plainly necessary to do so in order to prevent a provision from being unintelligible, absent, un-reasonable, unworkable or totally irreconcilable with the rest of the statute. 17. The Hon ble Supreme Court had further held that it is a well settled rule of interpretation that where there two are expressions which might have been used to convey a certain intention, but one of those expressions will convey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given to the appellant to establish that a practice similar to the practice in Kanpur Collectorate was prevalent in the Madras Collectorate at the relevant time. If the appellant can establish this, the case would be similar to the case of Ambica Khandsari Udyog, Saharanpur and the decision in that case would apply. 21. During the course of arguments, the learned Advocate had made an alternative plea that in the case of the appellant no period of limitation applies as the appellant had paid the duty under protest. The appellant had intimated to the Superintendent of Central Excise, Tuticorin M.O.R. vide his reference No. FA/CE dated 14-6-1980, wherein it was mentioned that the appellants are clearing indigenous fertilisers under nil rate of duty and will be preferring a claim for the duty paid from midnight of 6-6-1980 to 11-6-1980 with a copy to the Assistant Collector of Central Excise, Tirunelveli-2. My learned Brother has not gone into this aspect; probably it was not necessary for him, as he had accepted the appellant s first argument that the refund application was filed within the stipulated period. I am afraid, the alternative argument does not help the appellant in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the application in the office of the Superintendent was per se tantamount to filing it with the Assistant Collector. However, a careful reading of the relevant paragraphs makes it clear that great weight, in fact virtually over-riding weight, was given by the Bench to the practice of the concerned Collectorate, as shown by the evidence placed before the Bench. Reference to the practice of applications being presented to and accepted by Superintendents and even by lower officers, as seen from a Public Notice issued by the concerned Collector, has been made in each one of paragraphs 7 to 10. Even what appears to be a categorical conclusion that presentation to the Superintendent was tantamount to filing with the Assistant Collector, contained in para 8, has been supported by the fact that the Superintendent entertained the application; it has also been qualified by a reference to the Trade Notice and the practice. This will be seen from the following extract : In this view of the matter, we have no hesitation in saying that the act of the application having been addressed to the Assistant Collector, and having been presented to the jurisdictional Range Superintendent who e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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