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TMI Blog2014 (5) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... ing failed to satisfy the conditions of Rule 173L, the appellant’s refund claim was rightly rejected. In that case to avail of the concessional rate of octroi, importers were required to make declaration in prescribed form to the effect that the goods imported shall not be used for any other purpose for sale or otherwise, etc. Thus an incentive was sought to be given to such entrepreneurs by such concession if the raw material which is imported is also utilised in the industrial undertaking without selling or disposing of otherwise. This being the object, a verification at the relevant time by the octroi authorities becomes very much necessary before a concession could be given. Since the company in that case which had imported the goods within the Municipal Limit had failed to fulfil the obligation of filing the requisite declaration, the Supreme Court held that it cannot turn-around and ask the authorities to make verification of record. The Supreme Court further observed that the verification at the time when the raw material was there is entirely different from a verification at a belated stage after it has ceased to be there. The Supreme Court further observed that the fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d fact in dismissing the appellant s claim for refund, inasmuch as, it is not in dispute that the concentrate was originally cleared on payment of duty; the same was received back in the factory premises; the Department was duly apprised of the receipt of concentrate; in view of the nature of goods involved, which were mixed with the existing in process quantity, it was impossible either to process the said quantity of concentrate separately or to keep an account of the said quantity separately; and that while making clearance of concentrate again the duty payable thereon, was deposited and, therefore, it would be a case of double payment of duty and, consequently, the appellant was entitled to refund. 5. It was further submitted that in view of the fact that it was technically not possible to follow Rules 173L(2) and 173L(3) of the Rules, it was incumbent on the Commissioner to relax the compliance of procedural requirement, which power is specifically conferred on the Commissioner under Rule 173L(4) of the Rules and failure to exercise such power is absolutely illegal. 6. Reliance was placed on judgment of Hon ble Supreme Court in Mangalore Chemicals Fertilizers Ltd. v. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the case, I find no such request was made to the competent authority at any of the two occasions and situation has been presented as falt accompli. From the above, it is obvious that the appellants did not maintain detailed accounts of goods and processes to which those were subjected, nor did they complete the processes for which goods were brought back within six months. They also did not submit any account to the satisfaction of the Commissioner and there is no evidence to support their claim that the goods have been cleared subsequently. 10. The CESTAT by its order dated 21-3-2005 while upholding the order passed by the Commissioner (Appeals-II) held thus :- 3. It is quite evident from the record that the appellants did not follow the procedure laid down in Rule 173L for claiming refund of the duty paid on the material which was received back by them being defective. The contention of the counsel is that the said procedure could not be followed as the material was concentrate, cannot be accepted as they even did not apply to the Commissioner for the relaxation of the provisions of Rule 173L at any stage. They were required to maintain detaile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proper officer in writing in the proper form within twenty-four hours of such re-entry or within such further period not exceeding ten days, as the Commissioner may, on sufficient cause being shown, permit in any particular case. (2) The assessee shall maintain a detailed account of the returned goods and the processes to which they are subjected, after their return to the factory in the proper form. (3) No refund under sub-rule (1) shall be paid until the processes mentioned therein have been completed and an account under sub-rule (2) having been rendered to the satisfaction of the Commissioner within six months of the return of the goods to the factory. No refund shall be admissible in respect of the duty paid, (i) in respect of opened packages containing goods with concessional rates of duty or partial exemption for the small or cottage sector, as set forth in the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), or by a notification issued under Rule 8 or section 5A of the Act; (ii) if the amount of refund payable on the goods is less than rupees fifty; (iii) on goods which are disposed of in any manner other than for production of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les is not envisaged on a plain reading of the said Rule. 14. So far as the judgment in the case of Mangalore Chemicals and Fertilizers (supra) relied on by learned counsel for the appellant is concerned, which deals with distinction between a procedural condition of technical nature and substantive condition for grant of exemption, has no application to the facts of the present case. 15. On the other hand, the decision of Hon ble Supreme Court in the case of Indian Aluminium Co. Ltd. v. Thane Municipal Corporation : 1991 (55) E.L.T. 454 (S.C.) would be more appropriate; in that case to avail of the concessional rate of octroi, importers were required to make declaration in prescribed form to the effect that the goods imported shall not be used for any other purpose for sale or otherwise, etc. Thus an incentive was sought to be given to such entrepreneurs by such concession if the raw material which is imported is also utilised in the industrial undertaking without selling or disposing of otherwise. This being the object, a verification at the relevant time by the octroi authorities becomes very much necessary before a concession could be given. Since the company in that case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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