Decided on December 04,1991



S.V. Maruthi, Member (J) - (1.) THE issue is whether the refund claim of the appellants is barred by limitation.
(2.) THE relevant facts are as follows : The goods namely electronic goods were exempted from payment of duty on 15 -3 -1985. Duty was again levied w.e.f. 1 -3 -1987. Since the appellants were selling the goods in retail, he met the Asstt. Collector and discussed with him the permissible deductions they could claim including 18% abatement from retail price. Since the Asstt. Collector wanted time to examine the issue, the appellants as per his advice, declared the retail price in part V of the Price List and started paying duty under protest without claiming any deductions towards abatement or other post manufacturing expenses from retail price. A detailed representation was also given on 13 -3 -1987 to the Asstt. Collector indicating inter alia that they would be paying duty under protest pending finalisation of their price list.
(3.) IN the price list effective from 1 -3 -1987, they made an endorsement stating, "please refer to our letter No. DP/ADM/AI349 dated 13 -3 -1987 regarding deduction which will be claimed as refunds". Pending finalisation of the price lists, the Asstt. Collector approved the price lists provisionally. On 17 -2 -1989, the Asstt. Collector finally approved the price lists allowing 18% abatement from the retail price as claimed by the appellants. The appellants filed refund claim on 3 -5 -1988 claiming refund of duty paid under protest for the period from 1 -3 -1987 to 31 -10 -1987. The Asstt. Collector rejected the same on the ground that the duty was not paid under protest as the formality of affixing rubber stamp duty paid under protest on gate passes, RT -12 returns were not complied with. On appeal, the Collector confirmed the order of the Asstt. Collector. Hence, the appeal before us. The main contention of Shri Sridharan, the advocate for the appellants is that the letter of protest dated 13 -3 -1987 was not disposed of by a speaking order of the Asstt. Collector and as long as it is not disposed of, the duty paid remains under protest. The Asstt. Collector passed a speaking order only on 17 -2 -1989 till such time all payments are provisional. Therefore, the relevant date under Section 11(b) is six months from 17 -2 -1989. His further contention was that the provisions of Rule 233(b) with regard to the RT -12 returns are directory and not mandatory in nature. Therefore, the rejection of refund claim is opposed to law. In support of his contention, he relied on Andhra Cement Co. Ltd. v. C.C.E., Guntur 1986 (26) E.L.T. 553 (Tribunal) and on a judgment of the Bombay High Court in Roche Products v. U.O.I. 1991 (51) E.L.T. 238 (Bom.). His further case is that failure to endorse "duty paid under protest" on RT -12 returns is not an infirmity which bars the claim of refund. In support of this contention he relied on the order of this Tribunal reported in 1986 (26) E.L.T. 553. He further submitted that the letter dated 17 -2 -1989 was pending before the Asstt. Collector in view of the order of this Tribunal in C.C.E. v. Prestige Engineering India (P) Ltd. 1989 (41) E.L.T. 530 (Tribunal), it is obligatory on the part of the Asstt. Collector to dispose of the protest letter by an appellable order. His next submission is that the appellants made an endorsement on the price list stating therein deductions which will be claimed as refund. The fact that the remarks had been struck down by someone "as not concerned with the price list" does not mitigate from the fact that the appellants gave notice of their refund claim. Therefore, he submitted that the orders of the lower authority is liable to be set aside and the refund claim to be allowed.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.