9911796707
TMI Blog1974 (7) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Department took samples of cotton yarn from six bales of yarn and sent them to the Chemical Examiner, Central Revenue Control Laboratory, New Delhi, for verification of the count of the yarn which is necessary for ascertaining the excise duty payable in respect of the yarn. It was, however, found that the actual count was different from the data supplied by the mill and same yarn was found to be of higher count than the one declared by the mill. However, the Chemical Examiner gave an opinion that the average count of the samples was of 20 N.F. (New French) count or more but less than 34 N.F. According to the Tariff yarn of 34 N.F. count attracts higher rate of excise duty. The consignment was, however, assessed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawn. He took the view that the cotton yarn was assessed on the count of the yarn and not on the basis of the average count and the demand issued for the realisation of the amount erroneously refunded to the party correctly issued as provided in the rule 10 of the Rules. An appeal against this order taken to the Collector of Central Excise came to be rejected on 9-11-1967. The petitioner thereafter filed this petition challenging the demand made by the Central Excise Department. 3. The case of the Department in the return is that the cotton yarn in question was liable to excise duty under Item 18-A of the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act). This entry classifies cotton twist, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand which is made on 28-1-1967 is the fact that the amount has been wrongly refunded to the petitioner. The refund voucher as already stated was sent to the petitioner on 24-10-1966 in respect of Rs. 2,051.13. It is urged on behalf of the petitioner that the demand made on 28-1-1967 is beyond the period of three months as provided in Rule 10 of the Rules. It is not in dispute that the total amount of Rs. 4,446.21 which is demanded by this demand notice dated 28-1-1957 includes the amount of Rs. 2,051.13 which was refunded on 21st/ 24th October, 1966 and the basis of the demand is that the refund has been wrongly made. Now, Rule 10 of the Rules at the relevant time read as follows : "Recovery of duties or charges short-levied, or e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund is complete by the issuing of the refund vouchers. In our view, the date when these refund vouchers were encashed by the assessee is not all relevant for the purpose of computing the period of three months prescribed in Rule 10 The words used in the rule are "from the date of making the refund". The refund is made by the Department in the form of refund vouchers and it is that date from which the period of three months must be computed for fixing the period during which a legitimate and legal demand on the basis that some amount has been wrongly refunded can be made by the Department. Thus, so far as the amounts refunded on 24-10-1966 are concerned, the demand made by the Department for the first time on 28-1-1967 would be clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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