Decided on February 26,1991



K.Sankararaman, - (1.) M/s. Jayashree Chemicals Ltd. have filed this appeal against the Order-in-Appeal dated 1.3.1990 passed by the Collector of Central Excise (Appeals), Calcutta upholding the decision of the Assistant Collector of Central Excise, Cuttack dated 28.2.1989 whereby he rejected the refund claim filed by them as time barred.
(2.) Shri M. Lahiri, learned Counsel for the appellants argued their case when the appeal was posted for hearing. He elaborated the points raised in their appeal memorandum emphasising that the authorities below erred in going by the date of payment of duty in rejecting their refund claim as time barred. He handed over a list of dates of events. Initially they paid duty according to the value in the price list approved by the Assistant Collector. Subsequently the department filed an appeal to the Collector of Central Excise (Appeals), Calcutta who by his order dated 27.6.1985 partially set aside the Assistant Collector's order and ordered that the appellants should submit fresh price list showing detailed breakup of admissible deductions in the manner indicated by him. The department's appeal was partially allowed subject to the modification ordered by him. In accordance with this direction in the Order-in-Appeal, when a revised price list with lower prices was approved by the department on 14.10.1987, then only, the cause of action for refund arose. Accordingly they filed a refund claim within six months of the approval of the said price list. The refund arose as a result of the order dated 14.10.1987 passed by the Assistant Collector approving prices which were lower than those approved vide order dated 16.7.1984. The order of the Assistant Collector dated 14.10.1987 was not an executive order but an adjudication order. This was in implementation of the Order-in-Appeal passed by the Collector (Appeals) who gave a direction to file a fresh price list. Since a revised price list was filed by them, in pursuance of the said Order-in-Appeal the case is covered by Sub-section 11B(3) which lays down that where as a result of any order passed in appeal or revision under this Act refund becomes due, the same should be paid without the filing of a claim. Shri Lahiri also posed a question as to what the department would have done had the Assistant Collector approved a price higher than the original one and added that in that case, demand would have been issued by the department. When he was asked what, in that event would have been their stand in resisting the said hypothetical demand, he replied that the department would have alleged suppression or wilful misstatement on their part of justify the issue of notice under the proviso clause of Section 11A to cover the extended period beyond six months. He added that though the amount involved in the claim is not high, they are pursuing the matter on principle. Shri A. Choudhury, learned Department Representative argued the case on behalf of the respondent Collector. He pointed out the refund claim is dated 4.4.1988 for duty paid during the period 13.10.1982 to 19.11.1982, which is after a period of nearly six years. As per the statutory stipulations contained in Section 11B of the Central Excises and Salt Act, refund claims have to be filed within a period of six months from the relevant date. Only those situations specifically provided for otherwise in the said section are excluded from the requirement of filing refund claims within the time limit of six months. These are (1) The payment of duty should be under protest; (2) The goods should be assessed provisionally. In the present case, neither of these conditions is fulfilled, urged Shri Chioudhuri. He also contended that the refund in question was not the result of any order passed in appeal or revision, as stated by the learned Counsel. The Collector (Appeals) by his order ordered submission of fresh price list. He did not pass any order for the sanction of refund. The appellants filed a fresh price list which was approved by the Assistant Collector. The order of the Collector (Appeals) did not provide for any refund to be granted. Hence, the claim made by the Counsel that the case is covered by Section 11B(3) is not acceptable. He, therefore, pleaded that the appeal may be dismissed, upholding the Order-in-Appeal.
(3.) I have considered the submissions made by both the sides and also per-sued the record. The contention raised by the learned Counsel for the appellants that their refund claim was not hit by limitation, as it had been filed within six months of approval of the price list granted by the Assistant Collector on 14.10.1987 cannot be accepted as the date of order of approval does not constitute any of the relevant dates specified under Section 11B of the Central Excises and Salt Act, 1944 for the start of the period of limitation. Admittedly duty was not assessed provisionally nor was it paid under protest. It was, in fact pointed out by Shri Lahiri that the question of payment of duty under protest simply did not arise because the prices declared in the price lists submitted by them had been approved by the department. I find on a perusal of the first order in appeal that no refund became payable as a result of that order. This was the view taken by the Collector (Appeals) in his impugned order. He has observed therein that the refund arising out of redetermination of value by the Assistant Collector cannot be said to have arisen out of the appellate order. When the Assistant Collector approved the fresh price list, that became applicable prospectively. The relevant date for determination of the question whether the refund claim is in time is the date of payment of duty. Applying this criterion the authorities below had rightly held that the refund claim was barred by limitation. Accordingly, I see no reason to interfere with the order appealed against. Hence, the appeal is dismissed.;

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