9911796707
TMI Blog1985 (1) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... d December 74 to September 75". The amount of rebate as calculated and claimed by them came to ₹ 4,04,250.57P. 4-9-1975 On the above application the Assistant Collector passed his order authorising them to take credit of ₹ 3,98,953.43P as basic duty. 28-3-1976/ 3-4-1976 The appellants addressed a further letter dated 28-3-1976 to the Appellate Collector submitting a revised claim for rebate of a sum of ₹ 8,66,123.76P. An "advance copy" of this letter was received in the office of the Assistant Collector on 3-4-1976. The copy forwarded through the Superintendent of Central Excise was received in the office of the Assistant Collector on 24-5-1976. 10-2-1978 The Assistant Collector replied to the appellants rejecting the interpretation on the basis of which the revised claim had been made. 19-4-1978 An appeal was made to the Appellate Collector of Central Excise, New Delhi, against the Assistant Collector's order. 11-10-1982 The Appellate Collector held that the revised claim dated 28-3-1976 was barred by limitation. He further held that the Assistant Collector had already become functus officio on passing his first order and was not competent to reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t letter of 19-6-1975 only sought determination of the eligibility of the appellants to the rebate and could not be considered as a refund claim, since at that point of time no excess duty had been paid. It was only from October '75, which was even after the first order of the Assistant Collector, that the excess production started being cleared and excess duty started being paid. It was only the second claim of 28 3-1976 that could be regarded as a refund claim under Rule 11 of the Central Excise Rules. Rule 11, as it then stood, entitled an assessee to claim refund of any duty on the ground that it had been paid through inadvertence, error or misconstruction. This provision squarely covered the present case, since the appellants had been under the mistaken impression that in terms of Notification No. 146/74 the rebate had to be calculated on percentages of average production and not the excess production. When they came to know the correct interpretation, the appellants had made a claim for the refund of the duty which in the meantime had been paid in excess. Since the claim had been made within the time limit specified, they were entitled to have it allowed. Shri Shanti Bhushan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation of the notification which was different from the one adopted both by themselves and by the Assistant Collector, and the re-working of the amount of rebate (and consequent refund) on the basis of this interpretation would clearly have amounted to the revision of the order dated 4-9-1975 passed by the Assistant Collector. Shri Verma strongly urged that, as held by the Appellate Collector, the Assistant Collector became functus officio after passing his order of 4-9-1975 and was not competent to grant any further rebate or refund based on a different interpretation of the notification. In this connection he referred to judgment of that Madras High Court in the case of Indian Organic Chemicals Ltd. v. Union of India and others (1983 E.L.T. 34 Mad.). In that case the Hon'ble High Court had observed as follows :- "It is now settled law that there is no inherent power of review in an authority while acting judicially or quasi-judicially. The power of review must be conferred expressely or by necessary implication by the provisions of the statute. The power of the authorities under the Central Excises and Salt Act to review their earlier order has been considered by me in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to submit his refund claim in installments, when he was in a position to claim the entire amount at once. 12. A suggestion was made by Shri Tayal, also appearing for the respondent Collector, that the proper authority 10 modify the Assistant Collector's order was the Appellate Collector. Therefore, if the appellants felt they should have been sanctioned a rebate higher than what was sanctioned by the Assistant Collector, the proper course for them would have been to go in appeal to the Appellate Collector at that stage, which they had not done. It was pointed out to Shri Tayal that the Assistant Collector had in effect sanctioned the rebate as claimed by the appellants (on the view prevailing at that time) and therefore, they could not at that stage feel dissatisfied with his order. A remedy of appeal lies when a person feels aggrieved by an order and the appellants could not reasonably have felt aggrieved by the order of the Assistant Collector sanctioning whatever they had claimed. With reference to this aspect, Shri Tayal maintained that the only remedy open to the appellants was an appeal to the Appellate Collector. 13. We have carefully considered the arguments a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate due to the appellants in terms of Notification No. 146/74. However, it is also quite clear that the real issue involved in the revised claim was not either considered or decided by the Assistant Collector when disposing of the original claim. Both the assessse and the Assistant Collector were acting on the basis of a particular interpretation of the notification. Had the assessee claimed a refund on the basis of the interpretation he subsequently relied on. and had the Assistant Collector restricted the rebate to an amount based on the original interpretation, that clearly would have been a case where the Assistant Collector had taken a decision on a particular issue, and he would equally clearly have been precluded from revising that decision. But this was not the position. The particular issue raised in the revised claim was neither placed before the Assistant Collector nor decided by him. Therefore, it appears to us that in considering the revised claim and sanctioning a further refund to the extent found to be due on the basis of that claim, the Assistant Collector would not have been in the position of revising his earlier order. 16. The authority cited by Shri Verma (vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority would have been within its, rights to held, and in all probability would have held, that the appellants had no reason to feel aggrieved by the Assistant Collector's order, which granted them the relief they had sought. 19. In the result, we are of the view that the grounds advanced on behalf of the appellants have substance, and that the appellants' letter dated 28-3-1976 should be considered as a valid claim in respect of excess duty paid by them on excess production for a period of up to one year prior to the date of receipt of that letter, namely, 3-4-1976. As regards the interpretation of Notification No. 146/74, we follow our earlier decisions which have already been referred to. We further hold that the consideration of the refund claim would not involve a revision of the Assistant Collector's earlier order, but could be considered as supplementary to that order, and therefore, as within his competence. We accordingly allow the appeal and direct that consequential relief be granted. Subject to the verification of the appellants' claim that excess payments started from October 1975 onwards, viz., less than a year prior to 3-4-1976, the refund due to them shall be worke ..... X X X X Extracts X X X X X X X X Extracts X X X X
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