9911796707
TMI Blog2006 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ibution through PDS).They separately classified the same as the items suffered different rates of Excise duty. Owing to paucity of space within the factory, the appellants took permission from the Commissioner to store the sugar of both types in their godowns. This was granted to them. The godown was situated outside the factory premises. While shifting the sugar from the factory they paid duty applicable, to free sale sugar and filed a letter dated 22-6-2001 stating that they would be effecting clearance of levy sugar and subsequently claiming refund of the duty differential. The actual clearance of levy sugar was effected from the godowns (outside factory premises) on 26-6-2001 After the clearance of sugar from the godow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sugar Corporation Ltd. v. Commissioner of Central Excise, Meerut [1998 (100) E.L.T. 541 (Tribunal)] and submits that the facts of the present case are identical to the facts in the cited case. He submits that the refund claim is not hit by limitation and hence the refund is to be granted to them. He submits that the Commissioner's (Appeals) order is legal and proper and prays for dismissal of the appeal. 4. On a careful consideration of the submissions made by both the sides and on perusal of the impugned order, I notice that the facts of the case are identical to the facts in the case of U.P. State Sugar Corporation Ltd. (supra). The Commissioner (Appeals) after a detailed examination of the facts and circumstances of the case and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in the manufacture of goods which are exported out of India; (B) "relevant date" means, - …. (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; …. (f) in any other case, the date of payment of duty.] 8. The Appellant claimed that Explanation (d) is applicable to their case. However, on examination, I find that the rate for sugar is not based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agro Mills case [2002 (140) E.L.T. 513 (Tri.-Del)]. However, reference has been called by Hon. High Court (P&H) on the Oswal Agro Mills ruling, as reported in 2004 (168) E.L.T. 437 (P&H); but the Tribunal ruling has not been stayed. 10. On applying the ratio of the Tribunal rulings cited supra to the instant case; the communication dated 2-6-2001 made by the Appellant clearly expressing an intention to clear the sugar from hired godowns on payment of duty applicable to levy sugar followed by a refund claim is treatable as the original claim, followed subsequently by the formal claim in prescribed proforma. Ergo, the claim cannot be rejected on the ground of limitation, and the impugned order is legally unsustainable. ORDER The impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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