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TMI Blog1990 (9) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... d obtained a licence No. 1/82 (Rolling bearing) dated 28-4-1982 from the Assistant Collector of Central Excise, Hosur. They had been clearing ball bearings on payment of duty between 1st June, 1982 and 31st March 1983. As the total clearance during the financial year 1982-83 did not exceed Rs. 15 lakh, they filed a refund claim dated 14-3-1983 for the amount already paid seeking the benefit of Notification No. 80/80 dated 19-6-1980. The Assistant Collector of Central Excise, Hosur, by his order-in-original accepted the claim of the appellants and sanctioned a refund ofRs. 59,290.21. However, Collector of Central Excise, Coimbatore lodged an appeal before the Collector of Central Excise (Appeals), Madras, who by his order-in-appeal No. 33/84 dated 18-4-1984, set aside the order of the Assistant Collector of Central Excise and ordered the appellants to repay the amount erroneously refunded to them. 4. The Collector of Central Excise (Appeals), Madras, by his order-in-appeal, has held that the appellants had not lodged their refund claim in time. He has held that the relevant date under Section 11B of the Act is the date of payment of duty and not the close of the financial year as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, their submission that the proper construction of the Notification would be that a claim for refund could be made only after knowing the correct picture as on 31st March of the financial year and a claim for refund could be filed within 6 months from the close of the financial year. They have, further, contended that the main point on which reliance had been laid by the Collector (Appeals) in his order, had been the meaning assigned to the words relevant date through an explanation under section 11B according to which the relevant date for the purpose of the section in situations other than those specified therein, is the date of payment of duty . They had contended that such a strict interpretation of this meaning as done by the Collector (Appeals) would lead to injustice as also an anomalous situation is created in the sense that a manufacturer paying full duty from the beginning on account of the fact that he could not estimate his value of clearances in the financial year would be in a disadvantageous position vis-a-vis one availing the exemption right from the commencement of a financial year and whose value of clearance is the same, as the former could get only refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector in the order -in-original. 8. Shri S. Chakraborty, Id. J.D.R., arguing for the Revenue, submitted that the ruling relied upon by the appellant in 1978 (2) E.L.T. 705 (Kerala) has been reversed by the Division Bench of the same High Court as reported in 1983 (14) E.L.T. 2156 (Kerala). Shri S. Chakraborty, Id. J.D.R., further, submitted that as per the ruling of the Division Bench of the Kerala High Court (supra), applying the basis alleged in the said citation, the party is not entitled to claim the relief, as stated by them, in this appeal. We have heard the Id. J.D.R., perused the records carefully and gone through each of the citations referred to by the appellants in the arguments. The question that arises for consideration is whether the appellants are liable to reimburse the duty of Rs. 59,290.21 refunded to them, which they had paid to them, during the period 1-6-1982 to 31-3-1983 on clearances of their goods and as to whether they are eligible to the benefits in terms of Notification 80/80 dated 19-6-1980 consequent upon their total value of clearances during the financial year 1982-83 not exceeding the permissible limitation. 9. The Id. Collector, in the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st day of April in any financiafyear, by or on behalf of a manufacturer from one or more factories - (a)... (b)... (2) .... (i) if the aggregate value of clearances of the specified goods, if any, by him or on his behalf, for home consumption, from one or more factories, during the preceding financial year, had exceeded rupees fifteen lakhs" Section 11 (b) reads as follows - Any person claiming refund of any duty of excise may make an application for refund of such duty to the Asstt.Collector of Central Excise before the expiry of 6 months (from the relevant date) 10. It follows that by reading Section 11 (b) and Notification No. 80/80 that the Refund application has to be filed within the period specified under Section 11 (b). The Statute prevails over notification as rightly contended by the learned Departmental Rep. In the present case, the appellants had filed a Refund application on 14-3-1983 after 6 months from the payment of duty. A similar contention was raised by the party in Asstt. Collector of Central Excise, Emakulam v. T. T. Plunny Prop. Royal Smiths, Kunnamkulam [1983 (14) E.L.T. 2156 (Ker.)]. The Division Bench of the Kerala High Court while examini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to goods worth not more than Rs. 50,000/-. There is nothing in Rule 173-J of Rule 11 which obliges a person to confine his claim for refund to the articles removed in the earlier part of the year rather than to the later portions thereof; so that, the hardship and the inequity of having to prefer a claim or application for refund with respect to the earlier purchases and removals of steel furniture are more imaginary than real, in case of dealers regularly buying and clearing throughout the year. And, as for exceptional case of heavy concentration of clearance and removal in the early part of the year, with a rule of the type here involved, there is no reason why an application for refund should not be made each time clearance is made upto the limit of Rs. 50,000/- leaving the authorities to reject the same, if the ceiling of Rs. 2 lakhs for obtaining refund had been exceeded". 20. In the citation referred to by the appellants in the case of K.B. Foams Pvt. Ltd. [1985 (19) E.L.T. 476], the question of Notification No. 198/78-CE came up before this Tribunal for consideration. In this case, the question of refund depended on fixation of base clearance, the period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BTX Chemicals Pvt. Ltd. case. 26. Viewing the overall facts and circumstances of the case, we are of the opinion that the law laid down by the Division Bench of the Kerala High Court is more appropriate and applicable to the facts of this case. The appellants in this case had not filed the Refund application within 6 months of the date of payment of the duty as contemplated under Section 11B of the Act. They have filed the refund claim on 14-3-1983 claiming refund for payment of duty for the period prior to 14-9-1982. Admittedly, the refund claim has been filed after the expiry of 6 months. The Division Bench of Kerala High Court (referred supra) has in a similar circumstances sympathised with the party, but viewing the law applicable to the facts of the case, had rejected the contention. We are in total agreement of the ruling laid down by the Division Bench of the Kerala High Court noted supra and BTX s case of Bombay High Court (supra), and therefore, reject this appeal. 27. [Contra per : S.K. Bhatnagar, Member (T)]. - With due respect to Ld. Member (Judicial), my views and orders in the matter are as follows :- 28. I find that in this case originally the refund claim was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manufacturer could only know at the end of the financial year whether the production would exceed the exemption limit in terms of the Notification No. 85/74 dated 1-5-1974, a refund claim made at the end of the financial year in pursuance to that notification was not barred by limitation under Rule 11. 35. The Kerala High Court (Division Bench) has on the contrary taken a view (setting aside the single judge order) that even where the realisation that the goods cleared do not exceed the exemption limit may come only at the end of the assessment year the time limit pres.c.ribed under Rule 11 would apply. 36. I further note in this connection that this Tribunal has been of the view that where different interpretations are taken by different High Courts and a plurality of views comes to light, the Tribunal was free to adopt his own view in the matter as reported in the case of M/s. Atma Steel. 37. I also find that the Tribunal itself has in the case of M/s. K.B. Foam P. L.ld. [1985 (19) E.L.T. 476 (Tribunal)] has taken a view, while applying the Notification No. 198/76-CE, that where the question of refund depended on a fixation of base clearance, the period of limitation runs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 88/80-C does not refer to base clearance and, therefore, the assessee was not required to await the order of the Asstt. Collector. On the contrary, it provides that where a manufacturer has not cleared any specific goods in the preceding financial year or has cleared any such goods for the first time on or after first day of August in the preceding financial year the exemption contained in this notification shall be applicable to such manufacture if he filed a declaration with the Asstt. Collector that the correct value of such goods during the financial year is not likely to exceed the pres.c.ribed limit during the financial year. Therefore, while Collector (Appeals) was correct in his observation regarding the requirement of declaration (as aforesaid the applicability of the notification on merits was no longer open to question) the only date available for considering the aspect of time bar is the date on which the refund application was actually filed. The Order in Original indicates that the financial year in question is 1982-83 and therefore, if the ratio of the SRB in the case of Royal Seema was to be applied, the appellants would be entitled to claim refund within 6 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irement. The appellants contention that the aforesaid decision is applicable in the sense that irrespective of whether it is subsequent fixation of base period or original fixation of base period the Tribunal held that the limitation would run only from the date of final fixation of the base clearance is not tenable. It is difficult to accept the appellants contention that they would have known about eligibility or otherwise for duty exemption in terms of Notification No. 80/90 only after the expiry of the financial year. If they had closely monitored the progressive value of clearance from their factory they would have come to know that they had ceased to be eligible or - as the case maybe - continued to be eligible, for the benefit of the notification at a particular point of time. This situation is not comparable to the situation in Notification No. 198/76 where the assessee can claim relief only on the fixation of base clearance by the Assistant Collector on the basis of the particulars furnished by the assessee. 49. Another contention of the appellants is that the judgment of the Andhra Pradesh High Court in Auric Engg. Pvt. Ltd. v. Assistant Collector of Central Excise a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which band rolls are required to be affixed; another in cases where a manufacturer is required to pay a sum for certain period, on the basis of a rate fixed by the Central Government in full dis.c.harge of his liability for duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period the rate has been reduced before the expiry of that period; yet another is in the case of payment of duty provisionally under the Act or the Rules. In the present case, none of these contingencies exist. Therefore, the relevant date applicable to the present case would be as defined in sub-clause (f) of clause (B) of the explanation, namely, the date of payment of duty. 51. It has been contended by the appellants that since they anticipated much more than the value of clearances pres.c.ribed under para 3 of Notification 80/80, they did not file a declaration claiming the exemption from the first date of their commencement of manufacture. However, when they found that the total aggregate value of clearance during the financial year as on 14-3-1983 did not exceed Rs. 15 lakhs the claim for refund of duty was filed even befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iguity or doubt which needs to be resolved in favour of the assessee by a liberal interpretation or by extending any benefit of doubt. 54. In the light of the above dis.c.ussions, I agree with the learned Member (Judicial) and would hold that the refund application was barred by limitation. 55. As regards the other point formulated in the order of reference as to whether the applicability or otherwise of Notification No. 80/80 on merits could be looked into by the Collector (Appeals) and the Tribunal in the facts and circumstances of the case, as rightly pointed out by the learned Departmental Representative, the order of the learned Judicial Member does not deal with this point. Therefore, there is, really speaking, no point of difference on this particular aspect. Apart from that, since the basis for the two different perceptions (assuming that there is a point of difference) has not been set out in the order of the Member (Judicial) (he has not done so evidently because this point was not considered by him in view of his finding on the issue of limitation), it is not possible for me as Third Member to say whether I agree with one Member or the other. As such, I refrain from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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