9911796707
TMI Blog1995 (5) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. No. 1088, dated 28-11-1991. The appellants filed a refund claim under Rule 173L of Central Excise Rules, 1944. The Assistant Collector rejected the refund claim on the ground that reconditioning in Rule 173L should amount to remanufacture and the best course for them was to reissue the goods without payment of duty under Rule 173H. 2. While disposing of their appeal against the aforesaid order in original passed by the Assistant Collector of Central Excise, Barrackpore Division the Collector (Appeals) observed that it was a fact that the goods were received in the factory under Rule 173H and were despatched after packing the same in a new spool. He did not accept their plea that rewinding amounted to remanufacure and therefore, satisfied the provisions of Rule 173L and that they were entitled to get the refund. He referred to the Tribunal s decisions in Collector v. Maize Products reported in 1990 (49) E.L.T. 544 and Tata Finlay v. Collector reported in 1984 (18) E.L.T. 413. Accordingly, he held that rewinding the cable in a new spool and packing in a new container did not amount to remanufacture and as the condition of Rule 173L was not fulfilled no refund under the Rule. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were received from their transporter s godown on 27-11-1991 for which they had filed D3 intimation. They had already received another order from a different customer in Andhra Pradesh and they supplied the goods, after rewinding and repacking to them after paying duty again on 28-11-1991. They have claimed refund of duty originally paid as the self-same goods suffered duty twice over. They have submitted that the Tribunal s decision in the Hindustan Motors case is fully applicable to their case and the appeal may be allowed. 4. The appeal was heard by me when the appellants were represented by Shri N. Mookherjee, learned advocate. He reiterated the points raised in the appeal and pleaded that the appeal be allowed. 5. The arguments were opposed by Shri S.N. Ghosh, learned Departmental Representative who appeared on behalf of the respondent Collector. He supported the order. He submitted that the case does not come within the scope of Rule 173L for grant of refund. No process was carried out on the returned goods which are of the type mentioned in the said Rule. Nothing was required to be done on the returned goods and nothing was, in fact, done. The cable was returned and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. In line with the decision taken in the said case, it has to be held in the present case also that rewinding of the cables in another spool and repacking the same does not constitute any of the said three processes laid down in Rule 173L. It cannot be accepted that what was done amounted to repair or reconditioning. The facts involved in the Hindustan Motors Limited decision of this Bench cited by the appellants were different. There the excisable goods which were returned were held to have been subjected to reconditioning. Such is not the case here. But the three processes remaking, refining and reconditioning are followed by the expression other similar process . The Tata Finlay case was disposed of by the Tribunal with the finding that the process of repacking package tea into loose tea did not constitute any of the three processes mentioned in Rule 173M. There was no finding that the said repacking process did not fall in the category any other similar process either. I feel with due respect to the said Tribunal decision that the present case has to be decided taking into account the said statutory provision as well as the power available to the Principal Collector who may, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture. If manufacture results, then Rule 173H is not applicable. On the contrary, Rule 173L provides for refund of duty originally paid on the returned goods if they are cleared again on payment of duty after carrying out the processes permitted therein. But unlike 173H where manufacture is ruled out, there is no contrary requirement expressly provided for in Rule 173L that manufacture should result as a result of the processes carried out on the returned goods, unless the fact that duty payment is provided for, in that Rule would presuppose manufacture as duty is attracted only on manufacture. The Assistant Collector had rejected the refund claim on the ground that reconditioning in Rule 173L should amount to remanufacture and the best course for them was to reissue the goods without payment of duty under Rule 173H. The suggested Rule 173H alternative appears attractive and reasonable though a close examination of Rule 173H reveals that under this Rule duty paid goods may be brought into the factory if they need to be remade, refined reconditioned, repaired or subjected to any similar process. The Assistant Collector while indicating that the best course for them was to r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
