Judgment:
1. This is a Revision Application filed before the Government of India against Order No. V-2(26AA)811/ 79/5034 dated 16th June, 1980, passed by the Collector of Central Excise (Appeals), Bombay. On the setting up of this Tribunal this has been transferred here and is now being treated as an appeal before us.
2. Briefly the facts are that appellants filed a refund claim for an amount of Rs. 19,607.86 for the period 12th June, 1976 to 30th March, 1977 to claim the duty relief announced by way of incentive scheme to encourage higher production under Notification No. 198/76, dated 16th June, 1976. As per the order of the Collector of Central Excise (Appeals), Bombay, appellants filed the requisite declaration with the Superintendent of Central Excise on 22-7-76. The fixation of base clearances was communicated to the appellants on 23rd June, 1977. The refund claim was filed before the said Superintendent on 21st September, 1977. In the Order-in-Original the Assistant Collector rejected the claim for refund holding that it was actually filed by the party on 17th February, 1978, since it was on that date that it was re-submitted by the appellants after making necessary modifications in terms of objections raised by the Superintendent of Central Excise, who had returned the refund claim, received on 21st September, 1977. The Assistant Collector held that since more than 10 months had elapsed on 17th February, 19/8 after the last date of payment of duty, during the relevant period, the entire claim for refund was hit by time bar under the revised Rule 11 of Central Excise Rules, 1944. When the party appealed against this Order before the Collector of Central Excise (Appeals, Bombay he decided that the refund claim was actually filed on 21-9-1977, and that since the refund claim related to the period prior to the amendment of Rule 11 and was also received before the date of amendment of the Rule, the claim had to be considered in accordance with the Provisions of Rule 11 prior to the amendment. Accordingly, he held that the appellants were entitled for the refund of Excise duty paid by them during the period from 21-9-76 to 30-3-77.
3. Now before us appellant urges that the incentive scheme was brought into force with effect from 1st July, 1976 to encourage higher production. Under the scheme, determination of excess production takes place only at the end of the year vis a vis the base clearances. Since it is not possible in such cases for a refund claim to be lodged before the end of the entire year, Rule 11 is not at all applicable to such cases. In fact, no Rule of limitation is provided in such cases, it is urged.
4. Shri H.A. Chauhan, Partner appears on behalf of the appellants and reiterates the points stated in the grounds of appeal in the Revision Application.
5. Shri K.C. Sachar, the learned JDR has cited two decisions of this Tribunal Which are against revenue on the point at issue in this matter. These are, 1983 ELT 2426 (CEGAT) M/s. Neelamalai Tea/Coffee Estates and Industries Ltd. Nilgiris v. Collector of Central Excise, Madras and(Tribunal), Kothari Plantations and Industries Ltd. v. Collector of Central Excise, Calcutta.
6. We have carefully considered the facts of the case and the submissions made before us. Apart from the two decisions of this Tribunal cited above there is one other decision of this Tribunal which is pertinent to the issue before us in the present matter. This is New Jatiaga Valley Tea Estates Ltd. Calcutta v. Collector of Central Excise, Shillong, 1983 ELT 1274 (CEGAT). In these three cases together we find that the Tribunal has already taken a view on the relevant questions in the background of which the issue before us is to be decided. This Tribunal has already held that in the context of notification 198/76, clearances in excess were entitled for exemption only after the declaration was approved by the Assistant Collector.
Therefore, it was held that where an assessee submitted prescribed declaration to the Assistant Collector under this notification it had to be inferred therefrom that the assessee had staked the claim for the benefit of the notification. If this claim was staked in time i.e.
within the time limit starting from the date of payment of duty as prescribed in Rule 11 read with Rule 173B of the Central Excise Rules, 1944, the date of Submission of specific refund claim by the assessee after receipt of approval by the Assistant Collector was held to be not material so far as the limitation is concerned.
7. We are fully in agreement with the view taken by the Tribunal in the three cases cited above. Following the ratio of decisions in these cases the material date for determining the period of limitation is the date on which the appellants had filed the declaration. As per the Order-in-Appeal in this case the party had filed a declaration on 22-7-1976. The period for which the refund has been claimed is from 12th June, 1976 to 30th March, 1977. The entire claim for refund is well within the period of limitation.
8. In view of our foregoing findings, appeal is allowed with consequential relief to the appellants.