1. Hindustan Motors Ltd., P.O. Hindmotor, Dist. Hooghly, West Bengal has filed an appeal being aggrieved from Order No. 13/WB/83, dated 9th March, 1983 passed by the Collector (Appeals), Calcutta.
2. Briefly the facts are that the appeal relates to a refund claim of Rs. 4,331.98 (Basic Rs. 4,125.70+ Special Rs. 206.98) lodged by M/s.
Hindustan Motors Ltd., Post. Hindmotor, District Hooghly, before the Assistant Collector of Central Excise, Rishra in respect of clearance of a car bearing Engine No. OEZT 19908, Chassis No. III-402357 cleared from the appellant's factory on the 24th March, 1981 on full payment of excise duty @25% basic and 5% as Special, leviable on private motor car and subsequent conversion into a taxi following registration as such with the State Authorities. The appellant had filed a refund claim in terms of the Notification No. 141/75, dated 23-5-1975 as amended and the claimed amount being the differential one between the full duty leviable and the concessional rate, was rejected by the Assistant Collector of Central Excise, Rishra vide Order-in-Original No. V (34) 18/l/Rishra/82 dated 20th July, 1982. The appellant had submitted the certificate of registration of the car as taxi to the Superintendent of Central Excise, Hind Motors Range on 5th June, 1981. The clearance was made on 24th March, 1981. The claim was filed within three months from the date of the clearance of the car from the factory and thus the appellant was eligible to claim the refund on account of excise duty paid in excess in terms of the Notification No. 141/75 dated 23-5-1975.
The Assistant Collector had rejected the claim of the appellant on the ground that the same was time-barred as he had received the papers on 2nd December, 1981 whereas the car was cleared on 24th March, 1981 and the claim was beyond six months.
3. Shri B.P. Agarwal, Accounts Officer of the appellant company, has appeared on behalf of the appellant and has re-submitted the facts of the case. He has referred to the photo copy of the Gate Pass which has been attached along with the Memorandum of Appeal which clearly indicates that the car was cleared from the factory on the 24th day of March, 1981 and he has also referred to Annexure-5 attached with the Memorandum of Appeal to the effect that Annexure-5 which is an application for refund of Union Excise duty was filed before the Superintendent of Central Excise, Hind Motors Range. The application for refund is dated 5th June, 1981 and is addressed to the Assistant Collector of Central Excise, Rishra Division, 5, Esplanade Row (West), Calcutta-700 001 and the words "Through Proper Channel" have been mentioned. He has submitted the registration papers as well as the refund claim were filed before the Superintendent of Central Excise within the stipulated period and as such the appellant's claim was within the time and the same should be accepted. He has also drawn the attention of the Court to a photostat copy of the Certificate of Registration of car dated the 2nd day of June, 1981. He has also referred to a letter dated the 25th December, 1977 written by the Assistant Collector of Central Excise, Calcutta IV Division, Calcutta which permitted the appellant to follow a procedure for the clearance of cars to be used as taxis. The same is reproduced as under : Sub : Representation for clearance of cars to be used as taxi at concessional rate vide Notification No. 41/75, dated 23-5-1975.
Please refer to your representation on the above. The following procedure may be adopted with effect from 1-1-1978 : 1. Applications to the undersigned in quadruplicate will be submitted through the Superintendentof Central Excise, Hind Motor Range, showing therein the Engine Nos. and Chassis Nos. for the cars intended to be cleared at concessional rate. Clearances may be effected only after receipt of the application by the jurisdictional Superintendent subject to the observance of procedure as detailed below.
2. All gate passes for this purpose should be prepared separately and exclusively for clearance for cars as taxies. All Gate Passes should bear an undertaking regarding payment of balance Central Excise duty due if the conditions laid down in para (b) of Notification 141/75, dated 23-5-1975 is not fulfilded by you.
3. By 5th of each following month, a statement showing Engine No. and Chassis No. of each car along with Gate Pass No. and date against each car actually cleared at concessional rate should be submitted in triplicate to the undersigned through the Superintendent of Central Excise, Hind Motor Range for further action at this end, wherein it is to be categorically mentioned the cases where para (b) of Notification No. 141/75, dated 23-5-1975 is fulfilled. The reasons for non-fulfilment should also be stated.
I hope the above procedure will avoid the difficulties being experienced by you in getting permission from this office. Yours faithfully, Sd/- B.K. Ghosh Assistant Collector : Central Excise; Cal. IV Divn., Calcutta." He has pleaded that since the Department has given them a facility of approaching the Superintendent of Central Excise, the appellant should be given the benefit and it may be deemed that the refund application filed with the Superintendent may be treated as filed with the Assistant Collector and the application has been addressed to the Assistant Collector and the words 'Through Proper Channel' are very much there. He has pleaded for acceptance of the appeal.
4. In reply Shri A.K. Saha, the learned Senior Departmental Representative has pleaded that the refund claim was filed under Section 11B of the Central Excises and Salt Act, 1944. He has cited Sub-section 1 of Section 11 Band has pleaded that any person claiming refund of any duty of excise may prefer an application for refund of such duty to the Assistant Collector, of Central Excise before the expiry of six months from the relevant date. He has submitted that the provision as to the filing of refund claim before the Assistant Collector is mandatory and as such the appellant's application filed with the Superintendent of Central Excise has got no legal value and the appellant has not complied with the conditions of the Notification No. 141/75-C.E., dated 23rd May, 1975. The contents of the same is reproduced below :- "Partial exemption to motor cars for use as taxis-In exercise of the powers conferred by Sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts motor cars falling under sub-item 1(2) of Item No. 34 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) from so much of the duty of excise leviable thereon as is in excess of fifteen per cent ad valorem subject to the following conditions that- (a) an officer not below the rank of an Assistant Collector of Central Excise (hereinafter referred to as the said officer), is satisfied that such motor cars are required for use solely as taxis; and (b) the manufacturer furnishes to the said officer a certificate from an officer authorised by the concerned State Transport Authority in this behalf within three months of the date of clearance of the motor car by the manufacturer after payment of duty or such extended period as the said officer may allow, to the effect that each such motor car has been registered for use solely as a taxi," He has pleaded that the Assistant Collector had received the papers on 2nd December, 1981 and for all purposes the date of filing of refund claim is 2nd January, 1981 and not 5th June, 1981 when the papers were filed before the Superintendent of Central Excise. He has referred to the commentary on Central Excise Law of 4th Edition by R.K. Jain page 679 para 933. The same is reproduced as under : (1) Refund claim under Section 11B of Central Excises and Salt Act, 1944, is required to be made only to the Assistant Collector of the Division under whose jurisdiction the assessee falls. Therefore, refund claims should not be filed with the jurisdictional Sector Officers or Range Officers as they are not the competent authority to entertain them. In such cases, the date of receipt of refund claim by the Sector Officers or the Range Officers will not be considered as the date of receipt of such refund claims for the purpose of computing the limitation of six months under rule 11. But there is no objection if with a view to expedite the refund claim second copy of the claim is given to the concerned Sector Officer or Range Officer, provided the original application for refund has been made to the Assistant Collector of Central Excise within the prescribed time-limit.
(2) But a claim for refund presented to another Assistant Collector within time cannot be treated by the concerned Assistant Collector, as time-barred with reference to the date of receipt of papers in his office. The proper course of action for the Assistant Collector concerned would be to inform the applicants that he is not the proper officer to deal with such claims and the papers have been forwarded to Assistant Collector concerned for his disposal." He has also referred to the judgment of the Calcutta High Court in the case of Inchek Tyres v. Assistant Collector of Central Excise reported in 1979 E.L.T. J 236 wherein it was held that when a statute makes such right of refund the petitioner is bound by such conditions imposed by such statute which has conferred such right. He has pleaded that in view of the provisions of Section 11B and the findings of the Hon'ble Calcutta High Court in the case of Inchek Tyres, the appellant's appeal should be ismidssed, 5. After hearing both the sides I find that Notification No, 141/75, dated 23rd May, 1975 lays down two conditions. Firstly, the assessee has to satisfy the officer not below the rank of Assistant Collector of Central Excise to the effect that the motor cars are to be used as taxis. Secondly, the assessee (manufacturer) furnishes to the said officer a certificate from an officer authorised by the concerned State Transport Authority in this behalf within three months of the date of the clearance of the motor car by the manufacturer after payment of duty or such extended period as the said officer may allow to the effect each such motor car has been registered for use solely as a taxi. The letter C. No, V-34-30-5-76/11140, dated 25th December, 1977 written by the Assistant Collector, Central Excise, Calcutta IV Division, Calcutta explained the procedure to be followed by the appellant company for the refund of excise duty paid on cars to be used as taxis at concessional rate vide Notification No. 141/75, dated 23rd May, 1975. In the said letter there is no delegation of powers to the Superintendent of Central Excise for receiving the refund claims or for disposal of refund claims. In any case, there cannot be an estoppel against a statute. When a statute provides a particular procedure an assessee is supposed to follow the same specially an assessee dealing in excisable goods should be aware of the provisions regarding the filing of refund claims and the proper officer before whom it is to be filed. Undoubtedly the appellant had filed the registration certificate as well as the refund claim before the Superintendent of Central Excise within the time but Section 11 B of the Central Excises and Salt Act, 1944 prescribed that the refund claim has to be filed before the Assistant Collector and in the instant case the same was filed on 2nd December, 1981, The provisions of Section 11 B are quite explicit that the refund claim has to be filed before the Assistant Collector. I very respectfully agree with the findings of the Hon'ble Calcutta High Court in the case of Inchek Tyres v. Assistant Collector of Central Excise that the petitioner is bound to follow the conditions imposed by a statute which confers such right to the petitioner. The intention of the Legislature as per terms of Section 11 B is very clear that the refund claim has to be filed before the Assistant Collector. The same being filed beyond time I uphold the order passed by the lower authorities and dismiss the appeal.