- (1.) The respondents are manufacturers of colour picture tubes falling under Heading No.40.11 of the Central Excise Tariff Act, 1995. Some of the picture tubes were found to be defective at the customer's end and, accordingly were returned to the manufacturer for reconditioning/reprocessing under Rule 173-L of the Central Excise Rules, 1944. The respondents, accordingly, filed a declaration in Form-D3 with regard to the receipt of the defective colour picture tubes and after reprocessing/reconditioning, the respondents cleared the reprocessed goods upon payment of duty and, subsequently, claimed refund of duty paid under Section 173-L of the Central Excise Rules, 1944. The Deputy Commissioner issued a show cause notice directing the respondent to show cause as to why their claim for refund should not be rejected. After considering the reply, the adjudicating authority passed an order rejecting the claim. The respondent, being aggrieved, filed an appeal before the Commissioner, Appeal, Central Excise, who by its order allowed the appeal and set aside the order of the adjudicating authority.
(2.) On the basis of the appellate order, the respondent filed an application for refund. The adjudicating authority vide order dated 15th January, 2004 allowed the refund and permitted the respondent to take the credit but reduced the amount by Rs.27,003/- on the ground that the refund claimed was filed after a period of more than one year and, therefore, not entitled for refund as contemplated under Rule 173-L(1) of the Rules of 1944. The respondent, being aggrieved, filed an appeal, which was rejected and, being aggrieved, the respondent filed a second appeal before the Custom Excise and Service Tax Appellate Tribunal, who set aside the order of the adjudicating authority as well as the appellate order and allowed the appeal with consequential relief. The department, being aggrieved, has filed the present appeal under Section 35G of the Central Excise Act, 1944, which has been admitted on the following questions of law:- "(i) Whether the provisions as laid down under sub-rule (1) (i) or Rule 173-L may be ignored for granting refund of duty on goods received in the factory for re-making, re-processing etc. even after the expiry of stipulated period? (ii) Whether the interest to the respondent be paid under Section 11 BB of Central Excise Act, 1944, where the refund claim has been filed on 13.11.2004 and was sanctioned on 15.01.2004 i.e. well within three months from the date of filing the claim."
(3.) We have heard Sri B.K. Singh Raghuvanshi, the learned counsel for the appellant and Sri Nishant Mishra, the learned counsel for the respondent.;