9911796707
TMI Blog1992 (12) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 2-3-1982 which was issued by him to them. In their said letter they had submitted that the paper tubes (paper cores) fell under Tariff Item 17(4) but were exempted from payment of Excise duty in terms of Exemption Notification No. 62/82 dated 28-2-1982. They informed the Assistant Collector that in view of the above position, the Central Excise formalities followed by them till then of paying duty under Tariff Item 68 was being discontinued. They also requested that they may be guided in regard to any Central Excise formalities to be followed by them. On 1-1-1983 they received a letter from the Superintendent, Central Excise, Range-IV, Calcutta XIII Division that paper cores are classifiable under Item 68 as these were not boxes or cartons or bags or containers. They were, therefore, requested to observe necessary Central Excise formalities for manufacture and clearances of their said products. This was replied to by them by their letter dated 24-1-1983 wherein they stated that though they were not admitting the Department's views as directed by the Superintendent, they were ready to abide by the rules and regulations. They requested the Department to let them know the formali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty under protest as they had sent a letter that day intimating their payment of duty under protest. Thereupon the appellants approached the Assistant Collector, Calcutta A' Division. The claim of refund filed by them for the year 1984-85 was admissible in full since the whole of the duty claimed for refund was paid during March, 1985, which was well within six months from 18-5-1985. Since this was rejected by the Assistant Collector vide his order 20-7-1987 they filed appeals to the Collector (Appeals) which was disposed of by him vide his order dated 17-2-1988. He turned down their plea that refund was admissible upto the period of six months prior to 18-5-1985 holding that it has no sanction in law as a letter of protest is effective only from the date on which it was delivered to the proper officer. Aggrieved with this decision, the appellants have filed the present appeals. 3. Proceeding further, Shri Roy Choudhury submitted that the stand of the department is without any legal basis. The appellants are a small-scale industry who had placed the correct facts for the proper assessment of the goods before the departmental authorities. The Department had committed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. 292 wherein it had been held that the application through a classification list claiming exemption shall have to be treated as an application for necessary relief including refund, if any, the applicants were entitled to. He, therefore, pleaded that the appeals may be allowed. 4. The arguments were strongly resisted by the learned Senior Departmental Representative Shri M.N. Biswas. He submitted that the facts of the present case were not quite covered by the Supreme Court judgment referred to by the learned Counsel. He contended that the protest letter can only cover future clearances made subsequent to its lodging. It cannot be considered as a claim for refund for earlier clearances. The Note under Rule 233(b) clearly provides that a letter of protest is not a claim for refund. He also submitted that the goods had been finally assessed and there was no provisional assessment. He, therefore, pleaded that the appeals be dismissed. 5. Shri Roy Choudhury made a request that he may be permitted time to enable him to submit other case laws directly on the subject which would support his argument that the protest letter dated 18-5-1985 and the classification list submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have perused the record. I have also gone through the decisions cited by Shri Roy Choudhury in support of his contentions. In J.B. Advani & Co. Pvt. Ltd. v. Collector of Central Excise, the appellants had filed a revised classification list after coming to know about the issue of an exemption Notification on 15-11-1978 and requested that the revised classification list be treated as effective from 18-10-1978. Simultaneously, they wrote a letter dated 20-11-1978 requesting permission to avail the credit for the excess amount already paid in their RT-12 returns. It was held by the Tribunal that reading the said letter it becomes clear that the said letter was one for refund of amount already paid. It was further held that as the said claim was within the six months period notwithstanding the fact whether classification list was subsequently filed that had to be entertained. 9. In Dulichand Shreelal v. Collector of Central Excise reported in 1986 (26) E.L.T. 292, the Honourable High Court of Calcutta had, inter alia, decided the question of duty paid under mistake of law in exercise of writ jurisdiction under Article 226 of the Constitution of India. In Samrat International Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with the views of the Department (about the classification of the goods under Tariff Item 68) had been rejected by the Superintendent and they were directed to observe the formalities as applicable to Tariff Item 68 goods. Apparently the matter has ended there and nothing survived, much less a protest, for action by the Department though, on merits, the Department's decision was wrong. In the India Cements case decided by the Honourable Supreme Court the crucial letter of the appellants raising various objections about the proposed levy was dated 11-6-1974 when there was no prescribed procedure for payment of duty under protest. The present case, however, relates to payment of duty in February-March 1984 and March 1985 by which time the procedure for payment of duty under protest had come into force in the shape of Rule 233B. After the direction from the Superintendent for the observance of formalities as applicable to Tariff Item 68 goods the appellants had apparently fallen in line with the said requirements and, after availing duty free exemption as admissible to them, paid duty on the excess value beyond the exemption limit and also recovered the duty amount from their custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under a Notification should be treated as an application for necessary relief including refund, if any, due to them. We find that this case related to Rule 96YY. It was observed by the Tribunal that the said Rule being a complete code by itself the provisions of Rule 11 were not attracted in respect of matters falling within the ambit of Rule 96YY. This decision is by a two Member Bench of the West Regional Bench decided on 7-10-1983 and concerned assessments relating to the year 1978. The present case is concerned with other provisions. Moreover, the majority judgment of a 3-Member Bench of the Tribunal in Raj Laminates has clearly laid down that the revised classification list having been filed only on 2-6-1988 and refund claim having been filed, however, on 16-9-1988, refund was held to be permissible from 16-3-1988. This decision goes against the contention raised by the learned Counsel. Even the minority contra decision that the question of time bar was immaterial in that case was in the context of sub-section (3) of Section 11B laying down that where, as a result of any order passed in Appeal or revision, refund of duty becomes due to any person, the Assistant Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test, if only they had filed a refund claim, the payment of duty in March, 1985 that would have safeguarded their interests to that extent. However, inasmuch as they filed the refund claims only on 30-5-1986, the permissible time limit for filing refund claim in respect of duty paid in March 1985 had lapsed. The decision of the authorities below in treating their refund claims as barred by limitation, being in accordance with the provisions of Section 11B of the Central Excises and Salt Act, 1944 cannot be faulted and has to be upheld. 12. It is to be pointed out, however, that the Superintendent and the Assistant Collector had not decided the matter of classification correctly. Even as early as on 3-3-1982, the appellants had taken the correct stand regarding the classification of their product under Item 17(4) eligible for exemption under Notification 66/82 dated 28-2-1982. They had also stated that the Central Excise formalities that they had been observing till then were being discontinued as those were not necessary after proclamation of 1982-83 Budget. They requested the Assistant Collector to guide them by supplying information regarding Central Excise formalities if a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
