9911796707
TMI Blog2003 (12) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997 along with copies of duty paid documents and the declarations were verified by the proper officer and the quantity particulars were found correct. Appellants cleared 3,300 horns out of the returned 11,000 horns duly repaired and necessary entries were made in the statutory registers and the repaired goods were kept ready for despatch on receipt of orders. They have filed two refund claims for Rs. 77,480/- and another claim for a sum of Rs. 53,640/- on 18-11-97 under Rule 173L of the erstwhile Central Excise Rules, 1944 within six months from the date of reentry of the goods into their factory, as required under the rules. Show cause notices were however, issued to the appellants proposing to reject the claims on the ground that the repaired goods were still lying with the appellants and at that stage the question of allowing the refund does not arise. Though at the time of filing the reply, the repaired goods were not cleared on payment of duty, the same were later on cleared on payment of duty and the appellants submitted documentary evidence for having cleared 3,300 numbers of repaired horns again on payment of duty and this fact was also brought to the notice of the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants have come in appeal. In the grounds of appeal, it is inter alia stated as under : (a) The lower appellate authority has stated totally different reason for rejection of refund claims by the original authority, inasmuch as the original authority had rejected the refund claim on the ground that the appellants have claimed the refund claim without specifying the amount of refund payable as per proviso (iv) of Rule 173L(1) of the rules ibid, while the lower appellate authority has rejected the claim on the ground that the appellants become eligible for refund only on payment of duty on the repaired/reconditioned goods. Therefore, the rejection of the refund claim by the lower appellate authority is on an improper understanding of the order passed by the adjudicating authority. (b) The lower appellate authority has not disputed the fact of payment of duty twice by the appellants and so also by the original authority. (c) The lower appellate authority himself has quoted the ruling of the Tribunal in the case of Harawala Engineering Works Pvt. Ltd. v. CCE, reported in 1985 (22) E.L.T. 903 (T) wherein it was held that the very concept of refund im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar circumstances refund of claim of the party therein was allowed. Further, in the case of CCE, Pune v. Tektronix Automation Electronics P Ltd. reported in 2001 (127) E.L.T. 164, it was held that in respect of repaired/reconditioned goods, refund claim can be made as soon as the reconditioning is made and payment of refund claim may be delayed up to the actual clearance of the goods for the second time. Similar view was taken by the Tribunal in the case of HD Alloys (P) Ltd. v. CCE, Meerut reported in 2001 (130) E.L.T. 385. The learned Counsel in the circumstances, prayed for allowing the appeal. 5. Shri A. Jayachandran, learned JDR appeared for the department and defended the impugned order. He has also referred to the para-wise comments received from the Commissionerate, a copy of which has been filed in the Court on the date of hearing. In the comments it is inter alia stated as under : (a) The party s statement that the lower appellate authority and the original authority have not disputed the fact of duty twice paid by the appellant is contrary to facts. It is the non-payment of duty on the goods remade that forms the crux of the issue. (b) It has been sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of this has been furnished to the Department. (8) The original authority has categorically stated in his order that formalities which are required to be observed under Rule 173L for grant of refund have been satisfactorily followed by the appellants except payment of duty again on the re-processed goods. 6.1 In the backdrop of the above undisputed factual position, the plea of the department that the party has not made payment twice, is contrary to facts. As regards the language used in Rule 173L(3) that the process should be completed within six months, the Revenue contended that the process in respect of the returned goods also implies payment of duty for the second time before claiming refund. For better appreciation of the said rule, we reproduce Rule 173L(3) for convenience of reference : No refund under sub-rule (1) shall be paid until the process mentioned therein have been completed and an account under sub-rule (2) having been rendered to the satisfaction of the Collector within six months of the return of the goods to the factory. 7. From the above, it is clear that the term process relates to the process which are required to be carried out on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty and refund amount claimed under Rule 173L does not exceed the duty payable on re-processed goods, refund is admissible . 10. We note that in terms of the Explanation (B)(b) to Section 11B, in respect of returned goods the refund claim is required to be made within six months from the date of re-entry of the goods for repair. Therefore, as rightly contended by the learned Counsel for the appellants, they have filed the refund claims before removal of the goods on payment of duty for the second time, to remain within the time-limit, prescribed under Explanation ibid and hence they cannot be found fault with for filing the refund claim before clearance of the goods for the second time. Appellants have also made a prayer before the adjudicating authority for keeping the refund claims pending till the clearance of the repaired goods on re-payment of excise duty, as could be seen from the grounds of appeal. In such circumstances, the adjudicating authority could have kept the claims pending till such time payment of duty is made for the second time to know the exact amount of duty paid for the second time, rather than rejecting the claims, on the ground that amount of refund has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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