UNION CARBIDE INDIA LTD Vs. COLLECTOR OF C EX

JUDGEMENT

(1.) HEARD Shri N. Mukherjee, learned Advocate appearing on behalf of the appellants and Shri M.N. Biswas, learned SDR appearing on behalf of the department.

(2.) Shri Mukherjee cited an order of the East Regional Bench of the Tribunal No. 129/Cal/83-1020 dated 20-5-1983 in the case of Deputy Collector of Central Excise, Calcutta v. Indian Aluminium Co. Ltd., Howrah. He contended that the East Regional Bench in the above cited order had decided an identical issue. The said order touched the question of refund of duty on goods returned to the factory which is admissible subject to the prescribed conditions being followed. The mere fact that the goods were received in opened condition was held to be not militating against the grant of refund because the prohibition in respect of refund is not for opened package as such but in respect of opened package containing goods with concessional rate of duty or partial exemption by a notification issued under Rule 8. The point decided in the said case was whether the goods can be said to have been cleared initially at a concessional rate of duty or under partial exemption by a notification issed under Rule 8. It was contended by the Counsel in that case that the notifications in question were applicable to all aluminium producers in respect of non-levy aluminium and, therefore, the said notifications could be said to have prescribed only an effective rate of duty and not concessional rate of duty. The department has sought to rebut this argument on the ground that the notifications were issued in pursuance of Rule 8. The appellants' contentions that if the notifications were taken to fix a concessional rate of duty, the result would be that all aluminium producers would be debarred from availing themselves of the benefit of Rule 173L found acceptance by the Tribunal. In fact, they had admitted the possibility of such a situation arising in respect of other goods falling under other items of Tariff. An interpretation of the expression concessional rate of duty appearing in Rule 173L(3) leading to the effect that the producers of goods of particular description are debarred as a class from availing themselves of the benefit of Rule 173L, did not find favour with them. The notifications had the effect of lowering the rate of duty in respect of non-levy aluminium uniformly for all producers though the Tariff schedule prescribed a higher rate of duty. The Tribunal held that a concessional rate of duty would be one which lowers the uniformly applicable rate of duty in specified circumstances and, therefore, the notification in question was held as not fixing any concessional rate of duty. In the circumstances, they upheld the relief granted by the Collector (Appeals) and rejected the appeals filed by the department.

(3.) SHRI Biswas also referred to observations contained in the Order-in-Appeal where the Collector (Appeals) had analysed the issue and held that irrespective of whether the appellant falling under the category of small or cottage sector or not, when the duty had been paid at a concessional rate by a notification issued under Rule 8 and the goods had been removed and received back in opened packages, they are not entitled to the benefit of Rule 173L and, therefore, no refund was admissible.