9911796707
TMI Blog1995 (11) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the goods will be re-processed within 8 to 12 months from the date of receipt. Since the re-processing could not be completed within 6 months as envisaged under Rule 173L of the Central Excise Rules, on an application by the appellant, the Assistant Collector extended the time twice and the time extended finally expired on 22-9-1993. This is evidenced by the communication of Assistant Collector, dated 21-10-1993. The appellant completed the re-processing and as the goods after being subjected to re-processing emerged as excisable goods and as re-processing amounts to manufacture, the appellant cleared the re-manufactured laminations in terms of Rule 173L on payment of duty of Rs. 89,511.50 and the goods cleared as against the same were laminations of 8,290 kgs. It is under these circumstances the appellant preferred refund claim on 17-2-1993 for the refund of an amount of Rs. 1,08,561.15 initially paid under Gate Pass No. 7, dated 28-8-1992 which was rejected, resulting in the present impugned order. 2. Shri Sampath, the learned Counsel for the appellant contended the following, inter alia : (i) Admittedly the goods were brought back to the factory as per rules for re- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pocessing took place beyond 6 months, permission was granted under Rule 173H. Shri Murugandi further submitted that since the show cause notice does not specifically mention in what respect the appellant did not comply with Rule 173L, the matter may be remitted, with the direction that the authority may also go into the present contention of the appellant with reference to the exercise of the independent right under Section 11B. The learned DR also relied upon the ruling of the West Regional Bench in the case of Jyoti Ltd. v. Collector of Central Excise reported in 1993 (63) E.L.T. 279, in support of his plea. 4. I have considered the submissions made before me. The issue for consideration is whether the appellant is eligible for refund of the amount in question. The appellant is restricting his right for refund only to Rs. 89,511.50. The same goods which had been cleared on payment of duty under Gate Pass No. 7 on payment of duty of Rs. 1,08,561.15 were admittedly brought back on 22-9-1992 and the appellant also filed necessary D-3 intimation with the declaration appended thereto. When the goods were cleared after re-processing, they were cleared on payment of duty of Rs. 89,51 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise officers and does not restrict the return only to those goods found defective immediately on receipt but also covers goods which are found defective in the assembly line. As rightly contended by the learned Counsel for the appellants when appellants received substantial quantity of goods it would be physically impossible to examine each and every one of the items in order to find out as to whether it is defective or damaged or unsuitable. To superimpose such an onerous task on a manufacturer as that of appellants would force him to do the impossible and the relevant rules and the words on receipt" therein, in my opinion, cannot be put into a straight jacket as it were with such a degree of precision and exactitude so as to cover rejection eao instantal on receipt of goods. If such an interpretation or construction of the relevant rules were to be adopted it would lead to a very anomalous situation rendering the very rule itself unworkable, inoperative, nugatory and otiose, for the simple reason that there should indisputably be an interregnum of at least some split second time between the receipt of the goods and noticing the defect or damage thereon on receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end the benefit to the appellants. The rulings relied upon by the appellants and referred to supra would also highlight the legal position that strict construction of processual part or machinery part of the statute is not warranted, taxing statute notwithstanding. The Supreme Court has clearly held, that it is a well-settled principle of law that fiscal statute should be construed strictly is applicable only to taxing provisions, such as charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions. Indeed the appellate authority has also observed that it would be a different matter if the appellants were to return such goods on the ground that they have become surplus to their needs." In the present case, the show cause notice has not clearly spelt out as to in what respect the appellant has not conformed to the procedural formalities envisaged under Rule 173L. The learned DR also does not dispute this factual position. The learned DR submitted that the Appeal may be remanded so that the issue could be considered afresh. I was initially inclined to remand the matter but after going through the judgment of the Calcutt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
