ALEMBIC GLASS INDUSTRIES LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner No. 1 is a company registered under the provisions of the Companies Act, 1956 and petitioner No. 2 is authorised signatory and shareholder thereof. The petitioner-Company is engaged in the business of manufacturing of glass and glassware falling under Chapter 7015.00 of the Schedule to the Central Excise Tariff Act, 1985. Between 8/10/1987 and Oc 28/10/1987, the petitioner-Company cleared 6,26,400 bottles on payment of excise duty. The bottles were supplied to its customers. Out of the bottles supplied, it received back 6,09,240 bottles as being defective. These bottles were received back on 4-1-1988 and on 9-1-1988. The petitioner on 4/01/1988 and on 9/01/1988 made declaration in appropriate form before the Assistant Collector of Central Excise concerned that defective bottles were received back by the petitioner. The petitioner, thereafter, submitted an application on 18/02/1988 to the Collector of Central Excise and Customs and sought permission to destroy the bottles and re-make other goods therefrom. Permission was granted by the Collector, Central Excise on 3/02/1989.

(2.) The petitioner submitted a claim of refund of excise duty of Rs. 3,40,058.27 ps. (Rupees three lacs forty thousand fifty-eight and paise twentyseven only) on 29/03/1989. The Assistant Collector, Central Excise issued show cause notice dated 3/07/1989 and called upon the petitioner as to why the refund claim should not be rejected as the account of return of the goods and production of other goods was not submitted before the Collector of Central Excise within prescribed time as required under sub-rule (3) of Rule 173L of the Central Excise Rules and also on the ground that the refund claim was not preferred within the period of six months as provided under Sec. 11B of the Central Excise Act, 1944. The petitioner appeared before the Assistant Collector and made submissions on facts as well as on law points. The Assistant Collector, by his order dated 30/11/1989, produced at Annexure 'A' to the petition, rejected the claim inter alia on the ground that the provisions of submitting accounts to the Collector, Central Excise, within the prescribed period as provided under Rule 173L (3) of the Central Excise Rules was not complied with and that the claim was not filed within the period of six months as required under Sec. 11B of the Act. The petitioner has challenged the legality and validity of the aforesaid order by filing this petition.

(3.) When the petition came up for hearing, it was contended that the Assistant Collector who heard the show cause notice had retired before passing the order and his successor who has passed the impugned order had not provided an opportunity of being heard to the petitioner. Therefore it was submitted that the order was in violation of principles of natural justice. The submission and concession made by the learned Counsel for the petitioner was recorded by this Court in order dated 25/11/1991 as follows :