P.K. Desai, Member (J) -
(1.) THIS appeal is directed against the Order -in -Appeal No. AMP. 974/B.III/493/87 dated 1 -3 -1988 passed by the Collector of Central Excise (Appeals), Bombay, confirming the order -in -original No. V(68)18.30/86(106) dated 23 -2 -1987 of the Assistant Collector of Central Excise, Thane Div. II, rejecting the claim for refund of Rs. 12,458.00 filed by the appellants.
(2.) THE appellants, vide their refund claim dated 21 -8 -1986, claimed refund of Rs. 12,454/ - in respect of the duty paid on Voldram Model 257D, and cleared vide GP 1 No. 512/25 -3 -1986, pleading that initially the same machine was cleared on payment of requisite duty vide GP 1 No. 255/9 -11 -1984, for the purpose of display at the exhibition and was brought back on 6 -12 -1984, under appropriate D -3 intimation to the department, and was kept in the factory premises, from where the same was sold to a party and hence the same was removed from the factory vide GP 1 No. 512/25 -3 -1986 on payment of duty of Rs. 12,454.00, and pleaded that it was an excess payment of duty which required to be refunded. A show cause notice dated 16 -12 -1986, however, came to be served on the appellant, calling upon them to explain why refund claim should not be rejected on the ground that the refund could be granted only under Rule 173L of the Central Excise Rules, but the appellants had not received back the machine under the said provision, and further, reading the provisions of the said Rule with Section 11B of CESA 1944, the claim for refund of the duty initially paid was barred by limitation. In reply to the same, the appellant, vide their reply dated 5 -2 -1987, pleaded that as the goods sent for exhibition were returned, provisions of Rule 173H would stand attracted and as they had paid the duty at the first clearance, they were eligible to effect second removal without payment of duty, and that the duty paid second time was an excess payment. In the adjudication that followed, the adjudicating authority held that the re -entry and retention being claimed to be vide Rule 173H of the Rules, they had exceeded the period of such retention, and had also not followed the procedure prescribed vide Rule 173L. He also observed that though the duty initially paid was Rs. 6200/ - refund claim filed was for Rs. 12454/ -. In his finding, since the procedure provided under Rule 173G was not followed, and time limit prescribed under Rule 173H had expired, the refund was not admissible, and the claim was, therefore, rejected. The Collector (Appeals), while confirming the order of the adjudicating authority, held that the appellants claimed refund attracting provisions of Rule 173H of the Rules, but no provision existed in the said rule for grant of refund and reiterated the finding of the Assistant Collector that procedure of Rule 173L was not followed.
(3.) MR . M.S. Sanklecha, the Ld. Adv. for the appellants pleaded that undisputedly, the same item had suffered double duty, and pointed out that there was no dispute as to the identity of the article. He stated that the department had not doubted that the item other than the one received back from exhibition, was removed under the subsequent gate pass, nor was it the case of the appellant, that the item had undergone any repair, remake or any such allied processes. He also admitted that the same was removed after 1 year 3 months, after its return to the factory after being displayed at the exhibition. In his submission, however, Rule 173H of the Rules also may not stand attracted, as it was a case of double payment simplicitor, however if it stood attracted, then the rule provisions did not provide for any period, for subsequent removal. In his submission, the findings of the authority below, that Rule 173H does not contemplate refund, is ex facie not tenable, as the said Rule provided for second removal without payment of duty, and under the general provisions and basic fundamental, excess duty being unauthorised collection, had to be refunded. He also pleaded that criteria of Rule 173L of the Rules was wrongly attracted.
Mr. A.V. Naik, the Ld. JDR, while supporting the order, submitted that the duty paid at the time of second clearance alone was the excise duty paid, and the earlier being not the duty paid on removal on account for sale, could alone be claimed back, and that having not been done, the present claim was not maintainable. He further pleaded that the claim of the appellants could at the best, fall within the purview of clause (e) of Rule 173H(i) of the Rules, but that provision could be applied only when the goods were "returned" and would not cover up the cases of "re -entry". He further submitted that vide Trade Notice 190 MP/Gen/23/1980, time limit of one year is provided for removal of the goods brought back to the factory under Rule 173H, and here, the removal was undisputedly beyond that period. He submitted that plea that Rule 173H may also not stand attracted was entirely a new plea, never raised any time before. He also pleaded that the appellants would not be entitled to refund if the duty amount is already recovered from the customers.;