COLLECTOR OF C EX Vs. CASTROL LTD
LAWS(CE)-1991-1-4
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on January 10,1991

Appellant
VERSUS
Respondents

JUDGEMENT

T.P. Nambiar, Member (J) - (1.) THIS is an appeal filed by the Collector of Central Excise, Calcutta against the order passed by the Collector (Appeals) of Central Excise, Calcutta in Order No. 40/Cal/D6-novo/81 dated 18-12-1982. The facts of the case are that the respondents in this appeal preferred a Refund Claim on 10-11-1975 for a sum of Rs. 1,58,461.52 to the Assistant Collector of Central Excise, Calcutta-II Division on the ground that the products (Blended and Compounded Lubricating Oils and Greases) falling under Item No. 11B of the First Schedule to the Central Excises and Salt Act, 1944 were produced out of duty-paid goods (Blended or Compounded Lubricating Oil) falling under the same Item and the said products were not liable to further duty. The Assistant Collector of Central Excise, Calcutta-II Division issued a show cause notice as to why the claim should not be rejected as it was beyond the period of limitation provided under Rule 11 read with Rule 173J of the Central Excise Rules, 1944. The Respondents had filed a reply and after adjudication the Assistant Collector rejected the claim by his original order No. 32/Refund/11B/81 dated 31-7-1981. Being aggrieved by that order an appeal was filed before the Collector (Appeals) of Central Excise, Calcutta who passed the impugned order allowing the appeal of the respondents.
(2.) In the Grounds of Appeal it is mentioned by the Department that the goods (Blended and Compounded Lubricating Oils and Greases) on which duty has been paid during the material period for which refund claims were submitted on 10-11-1975 were manufactured out of materials falling under Item No. 11B of the said Schedule and such manufactured excisable goods were also classifiable under the same Tariff Item No. 11B of the said Schedule. Central Excise duty is, therefore, correctly leviable on the said goods and the collection of duty on the said goods is authorised under the law. The judgment passed by the Hon'ble High Court, Calcutta in CR No. 12490(W) of 1976 and F.M.-A No. 520 of 1978 in the case of Tide Water Oil Co. (India) Limited. Calcutta which stands confirmed on the dismissal of the Company's SLP No. 3283 of 1979 before the Supreme Court of India are relevant. In the Order of the Hon'ble High Court, Calcutta dated 27-3-1978 the Court while accepting Government's contention of imposing duty on the 11B products observed that the concerned manufacturer would be getting facilities of proforma credit in respect of duty paid on blended or compounded lubricating oils and greases used in the manufacture of finished blended or compounded lubricating oils and greases. It was also stated that the claim is barred by limitation. The learned S.D.R., Shri M.N. Biswas contended that the application was barred by limitation. Even otherwise, it was contended that duty was correctly levied and the collection of duty on the said goods is authorised under law.
(3.) THE learned Consultant, Shri P.R. Biswas for the respondent, in the first instance contended that the ground that duty was leviable in accordance with law was not mentioned in the show cause notice or in the order-in-original passed by the Assistant Collector. He also contended that the order-in-original passed by the Assistant Collector was based only on the ground that it was barred by limitation. He, therefore, contended that the only question which should be determined in this appeal is whether the claim is in time. In this connection, he relied on a decision of Tribunal Special Bench in Order No. 920/84 dated 30-11-1984 in the case of Castrol Ltd., Calcutta v. Collector of Central Excise, Calcutta.;


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