9911796707
TMI Blog1987 (7) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... iod from 6-4-1981 to 10.8.1981 on the ground that the respondents had been receiving for repairs damaged components of the Machines which they had supplied to their customers, and that they had been repairing them and charging their cost of repairs under erroneous notion that it was job work, and consequently they had been paying duty on the job charges although they were exempted from paying such duty in terms of Rule 173H of Central Excise Rules, 1944. The Assistant Collector, Central Excise after the usual adjudication proceedings rejected the claim of the respondents holding that the respondents are not entitled for the refund as they had not fulfilled the requirements laid down in Rule 173H read with those specified in the Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled for exemption. In his written submissions, the authorised representative of the respondents submitted that the Notification issued by the Collector under Rule 173H, ibid, was not binding on the respondents as such Notification has no force of law. In support of the contention he cited the following case law : (1) Union of India v. Shri Shadilal Sugar General Mills Ltd., [1981 (8) E.L.T. 210 (All.)]. (2) Nav Gujarat Paper Industries v. Superintendent of Central Excise Others [1977 E.L.T. (Guj.) 67]. (3) Royala Seema Cable Corporation v. Collector of Central Excise, [1983 E.L.T. 2358 CEGAT]. (4) Mahindra Mahindra v. Union of India, (1983) 13 E.L.T. 904. 4. In order to appreciate the controversy in hand it would be useful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents were clearly marked with the remark job work . Besides, no record was maintained or declared by the respondents under Central Excise Rule showing the exact nature of repairing done with the goods by them. As such, admittedly, the said conditions were not fulfilled by the respondents and therefore, the claim for refund was not found admissible by the Assistant Collector. To argue that the said conditions specified by the Collector in terms of Rule 173H in his notification were having no legal backing is without any substance. From a plain reading of Rule 173H as extracted above, it can be seen that the assessee may, subject to such conditions as may be specified by the Collector, retain in or bring into his factory or warehouse the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him under Rule 140. The cases cited by the learned counsel for the appellants are not applicable to the instant case. In the case of Union of India v. Shadilal Sugar General Mills Ltd., supra, the question of maintainability of the Civil Suit was in issue and it was with reference to this question that it was held that if the Appellate Authority constituted under the Central Excise Act comes to the conclusion that the Trade Notice destroyed the effect of Notification it can set aside the Trade Notice and the Civil Suit was not maintainable. It was further held that if the Trade Notice only explains the procedure for the enforcement of the Notification, the question of quashing it did not arise. In the case of Royala Seema Cable Corporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inasmuch as the said condition provides that assesee shall notify to the Superintendent in writing atleast 24, hours before the goods are intended to be received into the factory, giving full particulars of the goods intended to be received and the assessee shall maintain a detailed account of the returned goods and the process to which they are subjected after their return to the factory in proper form. These conditions provide a check and counter-check when the assessee claims refund under Rule 173H, ibid. In other words, in the absence of the fulfilment of the said conditions, the Department will not be in a position to check or verify the claim of the assessee for refund if made under Rule 173H, ibid. Since, admittedly in the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
