9911796707
TMI Blog1997 (11) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... nt date for calculating the time limit of 6 months for filing refund claim was the period between September, 1992 to December, 1992 when the duty of excise were paid by the appellants. On the other hand, the claim for refund was filed on 27-8-1993. Thus the Asstt. Collector was justified in holding that the refund claim was time barred. The ld. Commissioner (Appeals) also distinguished the decisions of the Tribunal in the case of Appellants themselves reported in 1994 (73) E.L.T. 401 and also in the case of M/s. K.B. Foam Pvt. Ltd. v. Collector of C.E. reported in 1985 (19) E.L.T. 476 and in the case of M/s. Sirpur Paper Mills reported in 1984 (15) E.L.T. 455 and held that in the present case, the application for condonation of delay in filing the registration papers cannot be treated as refund application by any stretch of imagination. He, therefore, dismissed the appeal of the Assessee. Being aggrieved by this order, the appellants have filed the present appeal before us. 2. The facts leading to the present appeal are that the appellants are engaged in the manufacture of Motor vehicles. In terms of Notification No. 162/86, dated 1-3-1986 as amended, saloon cars classifiable un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t available within the period of three months. The ld. Counsel submitted that the Department was informed that in case the RTO s certificate registering the vehicle as Taxi was not received in time, and if within three months, the proof of registration was not received, the balance duty of 30% shall be debited. The ld. Counsel also submitted that though the issue was again taken up with the Asstt. Collector intimating him that his order regarding the debit of duty within 3 months does not provide relief to the customers who could not submit the documents within the stipulated time period for some reasons beyond their control and for whom delay in submission of documents is condoned by the Asstt. Collector. The Asstt. Collector was, therefore, requested to amend the order to read as `submission within 3 months or such extended period allowed from the date of the clearance from factory. The Asstt. Collector was also requested for an order that differential excise duty need not be deposited until a final decision for condonation of delay is available; that it was pointed out to the Asstt. Collector that by mistake the appellants had debited the differential duty in respect of certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the papers regarding taxi registration documents have been filed to the Department beyond the period of three months stipulated under Notification No. 162/86, but the date of filing the taxi registration documents is either before the date of suo motu payment of the amount equal to the balance differential duty or is within six months from the date of suo motu debit in PLA. He argued that if the date of forwarding the papers of taxi registration is taken as the date of the claim, under Section 11B then, it is well within the limitation period of six months provided under Section 11B; that in the last of the appellant s letter dated 21-1-1993, it has been intimated that they will be filing refund claims in future in respect of the cases of similar value and that these refunds may kindly be granted. The ld. Counsel pleaded that in the facts and circumstances of the case, the date of forwarding the taxi registration document alone would constitute the date of staking the refund claims. In view of the fact that the purpose of forwarding the taxi registration document to the Department is only to make the claim for extending the benefit under Notification No. 162/86. He, therefore, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e months and the documents were being forwarded for condonation of delay; that in the last para it has been intimated in their letter dated 21-1-1993 that they had filed the refund claims and that it did not pertain to future claims. 6. On the question of sanction of refund as communicated by letter dated 4-7-1994, the ld. SDR submitted that this letter had been sent for Asstt. Collector and that nobody other than the Asstt. Collector could sanction the refund claim. Therefore, this letter of 4th July, 1994 could not be treated as a sanction of the refund claim as it has not been sanctioned by the appropriate officer. The ld. DR submitted that all cases of refund are required to be filed in the proper forms; that in the instant case, refund claims in the prescribed formats were filed on 27-8-1993 in respect of 108 numbers of vehicles duty on which was paid from April, 1992 to June 1992. Thus the refund claim was filed beyond a period of six months. The ld. SDR submitted that there is no provision in the Central Excise Rules where a refund claim can be accepted if filed beyond a period of six months unless there is a provisional assessment or payment of duty is under protest. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st for condonation of delay in filing the registration documents actually is made only to claim for refund in as much as the lower rate of duty is admissible only when the car is registered as a taxi. The Tribunal in the case cited supra had held that `by a letter dated 19-9-1973, the manufacturer requested orders to reclassify the clearance under Tariff Item No. 17(3) to enable them to claim refund because in the classification list approved from 1-3-1973, maplitho paper of 85 gsm and above was classified as cartridge paper assessable under Item 17(2). A dispassionate view would have told him that this was a claim for refund and that it was in time. In the instant case, we find that the request for condonation of delay was filed on 19-6-1993 in respect of 122 vehicles and the delay was condoned by the Asstt. Collector on 20-7-1993. A plain reading of the notification together with the provisions clearly says that any refund claim will be admissible only if the delay is condoned. The condonation of delay in itself has no meaning if it does not cover the question of refund of duty paid. Therefore, for harmonious construction of the provision of Notification No. 162/86, it becomes c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remained unapproved. The goods were cleared on payment of higher amount of duty. The formal refund claim was filed on 30-7-1975. The assessee was deemed to have stated his claim for refund on 19-4-1974 and the formal claim dated 30-7-1975 was regarded as in continuation of the initial claim. In another case concerning Sirpur Paper Mills decided by the Tribunal reported in 1984 (15) E.L.T. 455, it was held that the letter by which the assessee had requested for orders reclassifying their product Maplitho paper under Tariff Item 17(3) as against the original classification under Item 17(2) so as to enable them to claim refund of the excess amount paid by them constituted a claim was for a refund. Applying the same test to the present appeal. I find that the appellants had staked a claim vide their letter dated 17-5-1984. I am inclined to give them the benefit of doubt when they state that they were informed by the departmental officers that their claim vide the said letter would be disposed of while finalising the RT 12 assessment and they would get the credit in their PLA in terms of Rule 173-I. Only when the RT 12 was belatedly completed after nearly three years did they come to kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them vide their letter dated 17-5-1984. The fact that it was addressed to the Superintendent and not to the Assistant Collector cannot invalidate it. In the circumstances, I allow the appeal and set aside the impugned order-in-appeal. The appellants would be entitled to the consequential refund. In this case, the Tribunal observed that specific claim staked by them for the application of lower rate of duty and the payment of refund due to them on account of the excess payment made by them will come to their aid since formal refund claim subsequently made by them consequent to the remarks of the Superintendent while completing the RT 12 assessment cannot be treated as a fresh claim but as a continuation of the claim clearly staked by them vide their letter dated 17-5-1984. The fact that it was addressed to the Superintendent and not to the Asst. Collector cannot invalidate it. In the instant case, we find that in their letter dated 21-1-1993 addressed to the Asstt. Collector, the appellants wrote, we will also be filing refund claims in future, in respect of the cases of similar value these refunds may kindly be granted by allowing us the credit in RG 23A Part II. We also no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment s delay. What they did on 30-9-1980 was not making a new refund claim but only quantifying the amount for the claim already made. This quantification was only consequential to the claim already made in time and, as already stated above, the need for it arose because the department sat over the initial claim for exemption made by the respondents within 3 days of issue of the exemption notification and in advance of the start of the relevant financial year 1978-79. In the circumstances, the refund claim made by the respondents on 30-8-1980 is held to be not hit by time bar of Rule 11. Since on merits the Asstt. Collector has already held the claim as admissible vide his de novo order dated 14-12-1981/9-2-1982, there is no ground to deny the refund to the respondents. In the instant case, we find that the appellants had paid differential duty suo motu in accordance with the procedure settled between the Assessee and the Department. We also note that the office of the Asstt. Collector had held the claim as admissible in terms of their letter dated 4-7-1994. We also note that in the notification allowing concessional rate of duty had a clause for condonation of delay for submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim can be filed only after the condonation of delay in submission of the certificate of registration as taxi. In the instant case we note that the claim for refund was made by the assessee in their letter dated 21-1-1993. We also note that the claim for refund was filed within a short period after the condonation of the delay. We find that letter dated 21-1-1993 was within six months from the date of payment of duty. If this letter is treated as a claim for refund, then the refund claim is within the time. We also note that in the letter dated 4-7-1994, office of the Asstt. Collector had found the claim in order and there was no allegation in this letter about limitation. We also note that since there was a stipulation in the notification for extension of time, then in that view of the matter, the period of six months should start from the date the delay in submission of the Registration certificate as taxi is condoned. In the instant case the delay was condoned on 19-8-1993 and the formal refund claim was submitted on 27-8-1993 in respect of 108 Nos. of vehicles. Thus, the formal refund claim was filed within a very short period. 18. Having regard to the above discussions and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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