Judgment:
1. In appeal No. E/1787/93-NB(S), the appellants had furnished a security of Rs. 60,000.00 through National Savings Certificate (in short, NSC) and made a cash deposit of Rs. 2,17,389.00 to meet the requirements of 35P of the Central Excise Act, 1944 as per this Tribunal's order as modified by Hon'ble High Court of Delhi. Later on, the appeal was allowed by way of remand as per Final Order dated 3-10-1997 of this Tribunal [1998 (97) E.L.T. 74 (Tri.)]. Pursuant to the said Final Order, the appellants filed a claim for return of the above NSC and the aforesaid amount of Rs. 2,17,389.00, before the Assistant Commissioner on 18-11-1997. The claim was rejected by the Assistant Commissioner on the ground of time-bar under Section 11B of the Act as per his order dated 20-8-1998. Aggrieved by the said order of the Assistant Commissioner, the party filed a miscellaneous application before this Tribunal under Rule 41 of the CEGAT Procedure Rules for a direction to the jurisdictional Commissioner and Assistant Commissioner for return of the NSC and the aforesaid sum. This Tribunal after hearing both sides, passed order dated 29-12-1999 directing the Assistant Commissioner to refund the aforesaid amount of Rs. 2,17,389.00 and return the NSC to the appellants within a period of 3 months from the date of the order. The Commissioner of Central Excise was also directed to complete the de novo proceedings pursuant to this Tribunal's remand order within a period of 6 months from the date of the above order.
2. When the party moved the authorities for having the above order of the Tribunal implemented, the Deputy Commissioner, by letter dated 17-4-2000, asked them to file a 'fresh' application for claiming 'refund' and also to furnish evidences to rebut the presumption in terms of Section 12B of the Central Excise Act, 1944. Since the authorities were apparently in no mood to implement the Tribunal's order the party approached the Tribunal once again for redressal of their grievance. They filed miscellaneous application No. 220/200.
3. On the above application, this Tribunal passed order dated 6-7-2000 expressing dissatisfaction over the inaction of the officers and directing the Deputy Commissioner of Central Excise, Bhiwadi (Alwar) to file an affidavit stating the reason why the claim for return of the money was being rejected. The Deputy Commissioner was also directed to give reason for not passing orders pursuant to the Tribunal's orders dated 3-10-1997 and 29-12- 1999. The affidavit was to be filed on or before 20-7-2000. The matter has, accordingly, arisen before the Bench today.
4. Shri B.L. Sharma, Assistant Commissioner of Central Excise, Bhi-wadi has brought on record his report dated 19-7-2000. I have carefully perused this report, which states that the author of this report is in charge of the Office of the Deputy Commissioner of Central Excise, Bhiwadi after Shri Sanjay Srinet, Deputy Commissioner, was transferred from that office on 10-7- 2000. This document; as rightly pointed out by ld. Advocate Shri J.S. Agarwal, is hardly in the nature of an affidavit as required by this Tribunal. That apart, the contents of this documents by and large; appear to reflect the same old attitude of the authorities which had constrained the party to approach this Tribunal for relief by way of miscellaneous applications, 224/1999 and 220/2000.
In para 6 and 7 of his report, the Assistant Commissioner has insisted on filing of a refund claim under Section 11B of the Act in spite of the fact that this Tribunal had, in so many words, brought home to the authorities that return of the money and NSC was no 'refund' as understood under the Central Excise law. This attitude of the Central Excise authorities is an affront to the rule of law and requires to be deprecated.
5. The so-called affidavit of the Assistant Commissioner is not acceptable and he owes a personal explanation. Therefore, in exercise of the powers conferred upon this Tribunal by Rules 40 and 41 of the CEGAT (Procedure) Rules, 1982 read with Section 35-D of the Central Excise Act, 1944, I di-rect Shri B.L. Sharma, Assistant Commissioner of Central Excise, Bhivadi to appear personally before the Northern Bench (SM) of this Tribunal at 1030 hours on 17-8-2000. He shall also produce the entire record of the proceedings under reference. A certified copy of this order shall be delivered by the Registry to the CDR for information and necessary action. The Registry shall directly communicate this order to the Assistant Commissioner concerned within a week.