1. The Appeal is filed against the order of the Collector of Centra' Excise (Appeals), Bombay, dated 27.11.1982. The Appellants brought two K-30 x 110 Ammonia Compressors bearing Serial Nos. 830326 and 830332, falling under Tariff Item 29A(3), from M/s. Kirloskar Pneumatic Company Ltd., Pune, on payment of full duty under ragular Gate passes. On 20.1.1979 the Appellants lodged a claim for refund of Rs. " 33.408/-.
The Compressors had been actually used for the cold storage within one year of the date of clearance as required under Notification 132/68 dated 13.6.1968. The Appellants secured L-6 Licence and C.T.-2 certificate from the appropriate authorities on 10.11.1978. Chapter X procedure could not be followed prior to the removal of the compressors. The notification has used the words "As far as may be the procedure specified in Chapter X of the Central Excise Rules, 1944 is followed". The Assistant Collector rejected the refund on the ground that the procedure contemplated in Chapter X had not been followed in that L-6 licence and C.T.-2 certificate were not obtained before the clearance. The Appellate Collector also rejected the Appeal.
2. The Appellants did not appear and we have heard Mrs. Zutshi, S.D.R., for the Department.
3. In the grounds of appeal, the Appellants have urged that the procedure under Chapter X was not a "must" and the benefit of the exemption could not be denied to the appellants. The emphasis was laid on the words "As far as may be" appearing in the notification. The Appellants urged that a consumer was entitled to refund and placed reliance on the decision of the Madras High Court reported in 1981 ELT page 478 [Madras Aluminium Company Ltd. and Anr. v. Union of India 4. The Appellants claimed the refund on the basis of Notification 132/68. It is admitted that the appellants did not obtain L-6 licence or the C.T.-2 certificate prior to the clearing of the goods. Their argument that the term "as far as may be" would not connote that following the procedure under chapter X was not a mandatory requirement. The term "as far as may be", which is similar to the expression "as far as possible" means that the principles are to be observed unless it is not possible to follow them in particular circumstances of the case. The Expression "as far as may be", occurring in Section 46 of the Motor Vehicles Act, 1939 must only mean that an applicant must give information on the various particulars and matters referred to in Section 46, in so far as those requirementrs apply to him and in respect of which it is possible to give information [The Maharashtra State Road Transport Corporation v. Babu Goverdhan Regular Motor Service, Warora (1971) 71 BOM L.R. (S.C.) 85 at p. 90]. The term "as.far as may be" cannot be construed as a total abdication of the requirements of the basic principles but should be construed as a provision for certain exigencies. The Appellants have not satisfied us as to why the requirements of Chapter X were not followed by them. On the other hand, this basic requirement was set out in the notification so that the Collector could satisfy whether the premises was suitable and there was no danger to the Revenue. The licence has to be given after a personal inspection of the premises. The maintaining of accounts and the submission of monthly returns was contemplated. We do not agree that the appellants have made out sufficient grounds for dispensing with the basic requirements. The Assistant Collector has stated that the L-6 licence was not obtained and the C.T.- certificate was not secured before the clearances. It is far-fetched to contend that these requirements were not a pre-condition to enable the appellants to avail the benefits of the notification. The reference to another order of the Central Board of Excise & Customs dated 24.7.1976 is not relevant to the facts of the case.
5. We also find that the Appellants have not paid the duty to the Government. The duty was paid by M/s. Kirloskar Pneumatic Co. Ltd., Pune, In 1977 ELT (3. 157) the Gauhati High Court had on an occasion incase of Union of India and Anr. v. Silchar Supply Company to consider the issue and held that a person who was not a manufacturer or producer or who had not paid the duty directly would not be in a position to claim the refund. To a similar effect is a decision of the Calcutta High Court reported in 1977 ELT 0. 65) Akhil Bandhav Chemicals Ltd. v.Union of India. The Appellants sought support for their contentions relying on a decision reported in 1981 ELT P. 478. In that case the Madras High Court [Madras Aluminium Company Ltd. and Anr. v. Union of India] has held that the ultimate customer was the person entitled to the refund. But the facts of that case are totally different. The manufacturer who had already collected the duty applied for refund and the Court observed that instead of directing the refund to the appellants, the amount could be retained by the State for payment of duty to the ultimate customers as and when the claims are made and established by them. The facts of the present case are totally different. The Appellants have not followed the procedure set out in the notification and they cannot hence sustain their claim for refund.
The Appeal is, therefore, rejected.