Full Judgment
1. In the facts and circumstances of the case was the Tribunal's Order allowing the appeal correct in law? 2. Whether the Tribunal was correct in granting refund when the claim for refund in terms of Notification No. 198/76 dated 16-6-1976 as amended was filed after expiry of the stipulated time limit of six months from the date of payment of duty, as contemplated under Rule 11 of Central Excise Rules, 1944? 3. Whether the Tribunal having been constituted under the Act was correct in law in granting refund otherwise than in accordance with express provisions contained in Rule 11 of the Central Excise Rules, 1944? 4. Did the Tribunal err in allowing the appeal following the decision of the Special Bench 'D' reported in 1983 ELT 2426 (CEGAT), without considering the case on merits, and when the same Special Bench 'D' in a later order concerning Notification No. 198/76 CE decided on 20-12-1983 reported in 1984 (15) ELT 467 held that the refund claim filed beyond a period of six months stipulated under Rule 11 of the Central Excise Rules, are time barred? 5. Whether the Tribunal is correct in holding the declaration filed within the period of six months referred to under Rule 11 of Central Excise Rules, 1944 would be treated as a claim for refund of duty for the purposes of Notification 198/76, when the declarations filed by the company furnishing the details of clearances during a particular year, are only to enable the co-ordinating Assistant Collector to fix the base clearanc and to fix the date of crossing the base clearance? M/s. Asiatic Oxygen Ltd., Arakonam, are manufacturers of Industrial Oxygen. They filed four refund claims which were received beyond six months from the date of clearance, i.e. the date of payment of duty.
Their claim for refund was based on the exemption notification No. 198/76-CE dated 16.6.76 (Annexure F) which gave partial concession from central excise duty to certain specified goods. This concession was in the nature of an incentive for higher production, Industrial Oxygen was one of the commodities eligible for this concession. The instructions issued by the Department required that the assessees desirous of availing the concession should apply to the co-ordinating Assistant Collector where the assessee had manufacturing units located in different jurisdications - with necessary details of their base period and base period clearances.
The instructions further stated that the assessee's refund claim for incentive rebate would be sanctioned only after the Assistant Collector had approved the base period and base period clearances in respect of the concerned assessees. The respondents claim for refund was based on the ground that they had filed the claim within 6 months from the date of intimation to them of the base period and base period clearances determined by the Co-ordinating Assistant Collector without which information they could not file a refund claim. The Assistant Collector relying on Rule 11 of the Central Excise Rules, rejected the claims for refund on the ground that they were received beyond the statutory time limit of 6 months from the date of payment of duty vide his order C.No. V/14H/18/1/79 Vol. I dated 29.8.80 (Annexure B). The appeal filed by the respondents to the Collector of Central Excise (Appeals) was also rejected on the same ground vide his order No. 284/81 dated 16.4.81 (Annexure C).
The revision Application filed by the Respondents to the Government of India was heard by this Tribunal as an appeal before it under Section 35P of the Central Excises and Salt Act, 1944.
3. The Tribunal followed the decision of the Special Bench in the case of Neelamalai Tea/Coffee Estates and Enterprises Ltd., Nilgiris, v.Collector of Central Excise, Madras. (1983 ELT 2426 CEGAT) and held: "The date of filing of the declaration would be the relevant date for the purposes of calculations of time limit in a case of this type for purposes of Section 11B of the Act.
2. Following 'the above decisions, I allow this appeal to the extent that the declaration filed with the Assistant Collector concerned be taken as a claim for refund and relief afforded for a period commencing within six months prior to that date in respect of clearances of excess production of excisable goods." 4. I have beared both the sides on the Reference Application. Regarding Question No. 1 since it calls for a general discussion of the whole order without being specific on any point of law, it is not referable.
Taking questions Nos. 4 and 5 together it is found that the decision of the Special Bench 'D' of the Tribunal dated 20.12.83 in 1984 (15) ELT(467)(CEGAT) referred to by the Applicant now was not cited during the hearing of the appeal before the Tribunal and hence not dealt with in the order. It is therefore not possible to make any reference on these questions at this stage. The issue regarding the binding nature of a decision of a Three Member Bench of the Tribunal on other Benches consisting of smaller number of members all having concomittant jurisdiction -stands already referred to the High Court of Judicature at Madras in this Tribunal's Reference G/Ref/-69/85 (MAS) in the case of Collector of Central Excise, Madurai v. S. Raman of Paramakudi (Annexure D).
5. It is found that a single qustion can be conveniently referred to in the place of the two question Nos. 2 & 3 raised by the applicants, in the following form, and it is accordingly referred to the Hon'ble High Court of Judicature at Madras : "Whether in the facts and circumstances of the case, the date of declaration would be the relevant date for the purpose of claims of refund under Rule 11 of the Central Excise Rules, 1944".