9911796707
TMI Blog1996 (4) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... a separate order dated 12-9-1991. The Assistant Commissioner of Customs and Central Excise, Jaipur by his various orders rejected the refund claim of the appellants herein preferred under Rule 173L of the Central Excise Rules. This Rule says that the Commissioner may grant refund of the duty paid on the excisable goods cleared from the factory for home-consumption, which are returned to the same or any other factory for being remade, refined; reconditioned or subjected to any other similar process in the factory provided that such goods are returned to the factory within one year of the date of payment of duty and prior intimation is given in prescribed Form D-3 regarding the re-entry of each consignment and there is also the requirement th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of the goods for re-processing material requisition slips are issued but the Assistant Commissioner found that on them neither the box number nor the batch number is mentioned. Nor even a reference to D-3 intimation and inward note. The batch mentioned in the production slips maintained by the assessee were not found to tally with the batch number of the goods brought into the factory for processing. Therefore, Assistant Commissioner concluded that it is not possible to co-relate the goods cleared second time as being the same which were originally brought into factory for re-processing. The Commissioner (Appeals) in all the impugned orders upheld the Assistant Commissioner s orders. 2. Shri S. Madhvan, the learned Chartered Accounta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 435 (Tribunal) in the case of Bharat Aluminium Co. Ltd. v. Collector of Central Excise to say that there was no requirement under Rule 173L for the very same goods to be cleared on re-processing and the decisions recognised the position that original identity of the goods is not possible to be retained. It has been held [sic] that where technological necessity requires mixing of other ingredients during the re-processing it will not disentitle the refund under Rule 173L under the loss of original identity will not be a bar to such refund. The learned Chartered Accountant also cited case law to say that the returned goods need not to be processed separately. The appellants have stored the returned goods separately and the goods have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us. The Department s stand in this case that there has been lack of co-relation of the returned goods from the point of their issue for re-processing and, therefore, the Department feel that the identity of the goods cleared a second time with those returned to the appellants as defective has not been satisfactorily established so as to grant the refund claimed by the appellants under Rule 173L. However, we find that in the Orissa Cement Ltd. case (supra), the Tribunal has noted the precedent decision in the case of The Brittania Biscuit Co. Ltd., reported in 1980 (6) E.L.T. (J649) (G.O.I.) and 1982 (10) E.L.T. 495 (G.O.I.) in the case of Godfray Phillips India, Bombay which related to manufacture of biscuits of a variety different f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aluminium sections and extrusions from returned aluminium foils satisfies the requirement of Rule 173L including sub-rule (3) (iii) thereof which touches the question of goods of same class and further decision of the Tribunal in the case of Mexin Medicaments Pvt. Ltd. v. Collector of Central Excise, Baroda, reported in 1995 (77) E.L.T. 392 (Tribunal) it has been held that Rule 173L does not require that the reprocessing of returned goods should be undertaken separately. What is contemplated in Rule is that the goods should be returned under proper intimation and should be accounted for in the prescribed record. Applying the ratio of these decisions in the present case, it is not in dispute that the receipt of the defective picture tubes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior Departmental Representative in the case of International Computers Indian Mfg. Limited (supra) is not on all fours with the present case. That was a case where the assessee had received back computer material which assessee himself said that they have to be only destroyed and could not be put back on the market after reprocessing. Therefore, that was a case which could not be accommodated under the ambit of Rule 173L. In the result, since all these cases it is not in dispute that after the reprocessing of the returned picture tubes only picture tubes had been cleared again on payment of duty the basic requirement of both the goods falling under the same class of goods under Rule 173L is satisfied. The further fact that the other requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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