Judgment:
1. The brief facts of the case are that the appellants at the relevant time, were engaged in the manufacture of plastic cabinets classifiable under Tariff Item 15A(2) of the First Schedule to the erstwhile Central Excise Tariff and trading in accessories such as knobs, handles, drums, spindles, springs, panels etc. During the period from 1-4-1978 to 28-2-1979, they had purchased these accessories totalling value of Rs. 9,60,671/- on which they paid excise duty amounting to Rs. 48,033.55 @ 5% ad valorem under Tariff Item 68 of the Central Excise Tariff. Under Notification No. 68/71-C.E., dated 29-5-1971, plastic cabinets falling under Tariff Item 15A(2) and made out of either duty paid polystyrene falling under Tariff Item 15A(1) or made out of scrap of plastic were exempt from the payment from the whole of duty of excise leviable thereon. However, the appellants paid duty of Rs. 1,13,714.57 during the above mentioned period @ 5% ad valorem under Tariff Item 68. They filed an application for refund of the duty of Rs. 48,033.55 paid by them on bought out accessories during the period 1978-79. Further information was called for from the Department, and this information was also furnished by them under the cover of letter dated 11-2-1980.
The admissibility of the refund claimed was questioned by the Department who issued a show cause notice in April, 1988 raising objections on the ground of non-retrospective application of exemption notification and on the ground of time bar. The appellants filed a revised claim for a total amount of Rs. 1,61,748.12 (including the duty paid by them on plastic cabinets manufactured by them). The Assistant Collector, by order dated 7th July, 1988, rejected the entire claim on the ground of limitation. In appeal before the Collector (Appeals), the appellants submitted that the addition of the duty amount paid on plastic cabinets manufactured by them in their refund claim was to be considered only as an amendment or modification of the earlier claim filed within time and hence, cannot be considered as barred by limitation. The lower appellate authority held that the claim for refund of duty paid on plastic cabinets was a new claim and not an amendment of the earlier one and hence, was barred by limitation. As regards the original claim for refund of Rs. 48,033.55, the Collector (Appeals) remanded the claim back to the A.C. for fresh decision as this claim was not considered by the adjudicating authority. The appellants have filed the present appeal against the portion of the order of the Collector (Appeals) rejecting their claim for refund of duty on plastic cabinets as time barred.
2. We have heard Shri J.S. Agarwal, learned Counsel for the appellants and Shri A.K. Madan, learned DR. The authorities below have rightly held that the original claim which related to refund of duty paid on bought out items was independent and separate from the subsequent claim for refund of duty paid on goods manufactured by the appellants and both were independent and separate claims and the claim for refund of duty on goods manufactured could, therefore, not be considered as in continuation of or as an amendment of the original refund claim. Hence, we see no reason to interfere with the orders of the lower authorities and reject the appeal holding that the refund claim for Rs. 1,13,714.57 is time barred.
3. It is observed that the appellants had initially filed refund claim on 1-5-1979 for the period 8-4-1978 to 20-2-1979 in respect of accessories supplied with plastic cabinets manufactured by them on the ground that these accessories were bought out items and it was their main contention that they were themselves manufacturing only plastic cabinets and merely trading in accessories. Further, it was also their contention that their plastic cabinets were exempt under Notification No. 89/79, dated 1-3-1979.
4. The Department issued a show cause notice asking them as to why their claim may not be rejected on the ground that Notification No.89/79, dated 1-3-1979 could not be applied retrospectively, and further, no classification list was submitted and claimed was time barred.
5. The appellants replied and submitted refund claim with reference to Notification No. 68/71, dated 29-5-1971 on the ground that the plastic cabinets being manufactured by them were exempt under this notification. This claim was filed on 11-5-1988 for the period 1-4-1978 to 28-2-1979 and was rejected by the A.C. on the ground of time bar and the order was confirmed by the Collector.
6. It is observed that the above facts speak for themselves and learned Counsel's argument that the second claim was merely a continuation of the previous one and it should only be considered as an amended or modified (earlier) claim and therefore, should not be considered as barred by limitation cannot be accepted for a variety of reasons - (1) that the first claim related to two items, the accessories and the cabinets and (2) it was claimed on different grounds - in respect of accessories that they were trading items and in respect of the cabinets with reference to Notification No. 89/79 and was even then partly time barred and (3) the second claim is only with reference to the items manufactured by them and with reference to a different notification, namely 68/71 and (4) was for a different amount. I, therefore, agree with my learned Colleague that the claim was time barred, as already announced in the open Court.