Full Judgment
2. Shri R. Santhanam, learned Advocate, submitted that the Appellants manufactures two-wheelers and parts thereof; that some of the two-wheelers removed by them, on payment of duty, are received back under Rule 173L for re-processing; that after reprocessing carried out by them, the goods were transferred to RG I account for clearance on payment of duty or for export under Bond; that they had filed refund claims in respect of Central Excise duty; that the Revenue has rejected their refund claims on the ground that the scooters after reprocessing were exported under bond and as no duty was paid, they were not eligible for refund of duty; that some of the refund claims have also been rejected on the ground that D-3 intimation was filed late by them; that refund claim has also been rejected on the ground of limitation.
Learned Advocate, further, submitted that the refund claim has been filed by them within time limit as specified under Section 11B of the Central Excise Act; that the duty paid goods were received back by them on 25-8-99 and the refund claim has been filed by them on 25-2-99; that in terms of Section 9 of the General Clause Act, the limitation will expire only on 25-2- 99 and as the refund claim has been filed on 25-2-99 itself, there was no de lay. He relies upon the decision in the case of Commissioner of Central Excise, Meerut-II v. Rollatainers Ltd. -2002 (144) E.L.T. 649 (Tri.).
3. Regarding delay in filing D-3 Intimation, learned Advocate mentioned that D-3 intimation was filed on 27-8-99 in respect of goods received back into the factory on 25-8-99, since the factory remained closed on 26-8-99 on account of Raksha Bandhan. He relied upon the decision in the case of Commissioner of Central Excise, Bangalore v. Senapathy Whitelay Ltd. -1994 (69) E.L.T. 768 wherein it has been held that delay in filing D-3 declaration has to be considered a breach, if any, of procedural in nature and for this the Appellants cannot be denied the refund claim. He further, mentioned that even under the General Clause Act, if any requirement is statutory to be complied with on or before a 'date' and the date happens to be a holiday, compliance on the immediate day following holiday will be the 'date'. Finally, the learned Advocate, submitted that the refund claim cannot be denied on the ground that on the date of filing of the refund claim the reprocessed goods were not cleared, as the issue stands settled by the decision of the Tribunal in the case of Commissioner of Central Excise v. Metazinc (India) Ltd. - 1991 (53) E.L.T. 402 (Tri.) wherein it has been held that Rule 173L does not contemplate a situation that the reprocessed goods were actually cleared on payment of duty and the restriction placed under the provision (iv) under Rule 173L(1) is only in respect of the duty 'payable' on such goods after being reprocessed and not to duty 'paid'. Reliance has also been placed on the decision in the case of Rajasthan Spg. & Wvg. Mills v. Commissioner of Central Excise, Jaipur-II [2001 (134) E.L.T. 441 (T) = 2001 (45) RLT 411 (CEGAT)] wherein it has been held that the refund is admissible even when the reprocessed goods are cleared without payment of duty and refund is to be restricted upto duty payable on reprocessed goods but for the exemption. He also relied upon the decision in the case of Relaxo International v. Commissioner of Central Excise, New Delhi - 2002 (141) E.L.T. 430 wherein the Appellants were held to be eligible to refund of duty though the goods were exported after reprocessing without payment of duty.
4. Countering the arguments Shri Jagdish Singh, learned Departmental Representative, submitted that it is the requirement of Rule 173L(1) that the assessee gives the information of the re-entry of the goods into the factory to the Proper Officer in writing in the proper form within 24 hours of such re-entry to enable the Proper Officer to verify the particulars of the goods received back; that as the requirement specified in the Rule has not been complied with by the Appellants, the refund of duty as provided under Rule 173L is not admissible to them.
He, further, submitted that refund under Rule 173L is available only in cases where duty paid goods are received back and after reprocessing, they are again cleared on payment of duty; that if the goods had not been cleared on payment of the duty, there is no payment of duty twice and as such the question of refund does not arise. Similarly, in the case of export of goods under Bond, no duty is paid by the Appellants and as the duty has not been paid twice, the question of refund of duty paid earlier to the Appellants does not arise; that this legal position is evident from the provisions of proviso (iv) to Sub-rule (1) of Rule 173L which provides that the amount of refund payable shall in no case be in excess of the duty payable on such goods after being remade, etc.
5. We have considered the submissions of both the sides. We agree with the learned Advocate that the refund claim filed by them, on 25-2-99 in respect of the goods, which were received back on 25-8-99, is not hit by time limit specified under Section 11B of the Central Excise Act as the refund claim has been filed within six months of the receipt of the goods. It has been held by the Tribunal in the case of Rollatainers Ltd. that the proper procedure would be to exclude the relevant date and start the period of limitation of six months from the following day. No doubt, proviso (ii) to Rule 173L(1) requires filing of D-3 intimation within 24 hours of the re-entry of the goods within the factory, the Appellants have advanced the satisfactory reason which prevented them from filing D-3 declaration within 24 hours as there was a holiday in the factory on the day immediately after receipt of the goods into the factory. The purpose of filing of D-3 declaration is to enable the Proper Officer to verify the particulars of the goods received back into the factory. It has been mentioned by the learned Advocate for the Appellants that the officers did not feel it necessary to verify particulars even after the receipt of the intimation. It is also not the case of the Department that the Appellants had started reprocessing even before giving the intimation. As held by the Tribunal in the case of Senapathy Whitelay Ltd., the refund cannot be denied on filing the D-3 intimation late. Further, we are of the view that the appellants have complied with the requirements of filing a D-3 declaration substantially as they have filed the same immediately on next working day. We, therefore, hold that the refund claim cannot be denied merely on the ground of delay in filing the D-3 intimation. We also agree with the learned Advocate that the refund will be admissible to them even if the goods have been, after reprocessing, exported out of India without payment of duty, since the goods exported are not exempted and the duty is payable on them. However, it has to be shown by the Appellants that the amount of refund claimed by them is not in excess of the duty payable on the goods after reprocessing. For examining this aspect, the matter is to go back to the Adjudicating Authority to ascertain the amount of duty payable at the time of removal of the goods for export under Bond. The refund will be subject to the amount of duty payable on the reprocessed goods. Similarly, in respect of the goods which have not been removed after being reprocessed the refund can be sanctioned only if the goods either have been removed on payment of duty or removed for export under Bond. The question of refund arises only when the duty is paid twice. The Appellants are entitled to file the refund claim even if the goods have not actually been removed since under Section 11B of the Act, the refund claim has to be filed within six months of the date of entry of the goods into the factory for being remade, reprocessed etc. We, therefore, remand this aspect to the Adjudicating Authority to ascertain as to whether the goods after reprocessing have been cleared or not and also to ascertain the amount of duty paid or payable. All the appeals are disposed of in the above terms.