Decided on March 20,1986



K. Prakash Anand, Member (T) - (1.)SHRI K.M. Vadivelu, the learned Departmental Representative states on behalf of the appellant-Collector that in passing the order appealed against, the Collector (Appeals) has erred in law and therefore, his order should be set aside and the order-in-original of the Assistant Collector should be restored.
(2.)The facts of the case are that on 21st December, 1982 the Office of the Assistant Collector of Central Excise, Yeshwantpur Division, Bangalore, received a refund claim for Rs. 1,62,281.75 from the Range Officer, Peenya-I Range pertaining to M/s. Gayathri Women Welfare Association, Bangalore filed under Rule 173-L of the Central Excise Rules, 1944. This claim was lodged by the respondents with the Range Superintendent on the 11th December 1981 but it was received by the Divisional Office only on 21-12-1982. The Assistant Collector held that by the time the Divisional Officer came to know of the refund claim, the statutory period of six months for claiming of refund as prescribed under Section 11B of the Central Excises and Salt Act, 19H, had already expired. The respondents had submitted before the Asstt. Collector that earlier there was a practice according to which such claims were actually routed through the Range Superintendent. This submission of the respondents was not dealt with by the Assistant Collector. The respondents had also stated that if the time limit had expired under Section 11B, Sub-rule (4) of Rule 173-L vested in the Central Government powers to relax provisions pertaining to claim for refund. This was answered by the Assistant Collector by pointing out that the power under Sub-rule (4) of Rule 173L of the Central Excise Rules 19 vests in Central Government powers to relax only the provisions of Rule 173L and not the provisions of Section 11B of the Central Excises and Salt Act, 1944. The Assistant Collector accordingly rejected the refund claim.
In his order-in-appeal the Collector of Central Excise (Appeals), Madras has held that the Assistant Collector had not denied the submission of the appellant (respondents herein) that their claim was addressed to him though handed over to the Range Superintendent and that it should have been returned to the appellant advising them to file the claim directly to the Assistant Collector or they should have forwarded the claim immediately to the Assistant Collector. He took the view that since the Range Superintendent had accepted the claim addressed to the Assistant Collector it has to be held that the claim was received by him on behalf of the Assistant Collector. He held that the date of lodging of the claim should be the date on which the claim was handed over to the Superintendent. From the respondents' side, Shri M. Raju, the Factory Manager, apart from reiterating the strong position taken in the order appealed against has filed copy of CEGAT's Order in the case of "Sri Ambica Khandsari Udyog, Saharanpur v. Collector of Central Excise, Meerut" 1985 (21) E.L.T. 281 in which it has been decided that the period of limitation for a refund claim addressed to the Assistant Collector of Central Excise but presented to the Superintendent of Central Excise should be computed from the date when the claim was presented to the Superintendent and not when it was transmitted to the office of the Assistant Collector.

(3.)WE have carefully considered the facts of the case and the submissions made before us. WE have noted the respondents' contention that apart from other arguments any breach of procedural requirement can be waived by Central Government under powers vested in it under Sub-rule (4) of Rule 173-L. On this we cannot but uphold the view taken in the order in original that the powers for relaxation vested in the Central Government in Sub-rule (4) of Rule 173L pertain only to the provisions of Rule 173L. They do not extend to statutory requirements.

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