9911796707
TMI Blog1991 (12) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... s within the time limit and that they were eligible for the refund of duty claimed by them. He has pointed out in his order that the appellants had, in their reply to the show-cause notice, referred to their claim dated 8-4-1986 which was received in the Assistant Collector s Office on 23-4-1986 and as the duty for the second time was paid in December, 1985, the refund claim was within the time limit. The appeal has been allowed accordingly subject to correctness of this fact . 2. The facts necessary for disposal of the present appeal are as follows :- The Respondents M/s. Indian Chain (P) Ltd. had cleared certain goods on payment of duty on 16-2-1984. These were returned to them by the consignees on 24-5-1984. The respondents cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leared as returned goods which have been reprocessed, have not been properly identified and linked to the originally duty paid goods. 4. Shri S.K. Sinha, learned Counsel for the respondents opposed the grounds taken in the appeal and pleaded that the Order-in-Appeal maybe sustained as it is based on the correct appreciation of the legal position and the facts of the case. He submitted that the refund claim was not under Rule 173L. The goods had been rejected by their first customers and were simply returned as they were not suitable for them. They were received back in the factory for being stored and resold to other customers. A D-3 intimation had been submitted within 24 hours of receipt of the returned goods. The goods were entered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows :- Duty paid twice on same materials, Refund claim on first despatch i.e. through G.P. 1 No. 224 dated 16-2-1984. It was also stated in the refund claim that the amount claimed was debited to Account Current No. 47/68/96A/VII/5/75 dated 11-6-1975 on 16-2-1984 against G.P. 1 No. 224 dated 16-2-1984 vide entry at Serial No. 281. It was only in their reply dated 21-9-1987 to the show-cause notice dated 24-7-1987 pointing out that the refund claim had not been submitted within the stipulated time as per relevant proviso of Rule 173L and as such barred by limitation of time that they stated that they did not lodge the claim under Rule 173L and hence the question of their observing the formalities prescribed thereunder did not ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be vitiated. What is important is whether the excess amount paid by them at the time of subsequent clearance was payable by them under the law or not and whether they filed a refund claim within a period of six months from the date of erroneous payment of duty. These points were stressed by Shri Sinha during his argument. These points have also been referred to in -the cross-objection filed by the respondents against the appeal. It was contended that their refund claim had been wrongly rejected by the Assistant Collector on the ground that it was time-barred under the proviso of Rule 173L. He had held that the refund claim merited no consideration under the proviso of Rule 173H and Section 11B. There was no finding that the claim was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with the actual contents of their refund claim and its preceding letter dated 8th April, 1986. In both, it has been categorically stated that the amount claimed was Rs. 5,660/-. Further, in the refund claim in Form Appendix I it has been reiterated that the amount claimed was debited on 16-2-1984 against the Gate Pass of that date. The amount claimed being Rs. 5,660/- is not a mere coincidence or a slip on their part. It was the amount paid by them originally when the goods were cleared on 16-2-1984. It is clear, therefore, that what they claimed as refund was only that amount. Only in their reply to the show-cause notice, had they made a claim that the refund was in respect of the duty paid by them on the second occasion. The said reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion. No doubt, it is possible to agree with their contention that their case is covered by Rule 173H and not under Rule 173L and their non-availment of the latter procedure but paying duty on the clearance of the reconditioned returned goods does not disentitle them to refund under Section 11B of Central Excises and Salt Act, 1944, as a case of refund of any duty. But, for that they have to conform to the stipulations thereunder. Their refund claim vis-a-vis the duty paid by them wrongly has taken shape only in their reply to the show cause notice which is dated 21st September, 1987. They had not staked their claim originally on this ground. That claim made through letter dated 8-4-1986 and Appendix I form later on, in reply to the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X
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