9911796707
TMI Blog1988 (6) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, found on examination of the factory records that the respondents had cleared the said free sale sugar on payment of duty of Rs. 1,24,095.76 only. It thus appeared that the respondents had taken a credit of Rs. 1,46,932.40 in excess of the amount actually paid by them and they were therefore required to show cause why this amount should not be debited to their Personal Ledger Account. 2. Reply to this show cause notice was sent by the respondent on 23rd July, 1979. On consideration of this reply a further notice, dated 22-1 -1980 was issued to the respondents that the differential amount recoverable from them appeared to be Rs. 1,48,744.34 instead of Rs. 1,46,932.40 as intimated in the show cause notice, dated 1-6-1979. It was noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the rebate was 24-11-1978, the actual date of availment of the rebate was 9-1-1979, and this would be the relevant date for determining an issue relating to time bar. 6. The learned JDR has also urged that the grant of rebate of duty is always provisional and subject to finalisation, on adjustment, at the time of clearance and assessment of the sugar, and therefore the date of advance credit, as such, should not be considered as the final date of refund. 7. Responding Shri B.B. Gujral, Advocate, submits that the date of sanction of refund i.e. 24-11-1978 should rightly be considered as the date of refund. In this connection he relies on the decision of the Vidarbha Mills Barar Limited v. Collector of Central Excise, Nagpur and Ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period covered by the Bombay High Court decision (supra) required that a written demand by the proper Officer should be made within 3 months from the date of making the refund". In that case the refund had been made by issue of refund vouchers which were encashed after 24-10-1976 that being the date on which the refund vouchers were sent to the assessee, under a covering letter. The High Court observed that the encashment of the refund vouchers was not from the Department itself but by presentation to the concerned Treasury. The High Court held that in such circumstances the refund is complete by the issue of refund vouchers and it is from that date that limitation should be computed. The argument for the Department in the present mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection we may refer to a decision of the Supreme Court where also this question (as to when a refund can be said to have been made) was considered, though not with reference to Rule 10 of the Central Excise Rules. This was in the case of Geep Flash Light Industries Ltd. [1983 E.L.T. 1596 (S.C.)]. The question to be considered therein was with reference to the provisions of Section 131 (5) of the Customs Act, as it then stood, read with Section 28 of the Customs Act. Section 28(3) (c) reads that for the purpose of sub-section (1) the relevant date means, in the case where duty has been erroneously refunded, the date of refund. As earlier seen Rule 10 of the Central Excise Rules during the period relevant to this case spoke of the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voucher was prepared and issued, the date of refund in cases where refund is by ordering credit to be taken in the PLA would be the date when credit is actually taken in the PLA. 13. The contention for the Department in the present instance is that the date when credit was actually taken was 9-1-1979 and if limitation is computed from that date the notice, dated 1-6-1979 was within time, the subsequent notice merely altering the amount demanded. We find that no evidence is available to us at present as to the date when credit was actually taken. This matter had not been raised in this form before the lower authorities. That is why they did not go into this particular date. The order of the Collector (Appeals) will therefore have to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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