Full Judgment
2. Briefs facts for the purpose of disposal of this appeal can be stated as below: 3. The appellants filed a refund claim on 9-10-1987 for a sum of Rs. 59,338.34 being the duty paid during the period from 3-3-1986 to 24-3-1986. The aforesaid refund claim was rejected as time barred by the Assistant Collector holding that the regular refund claim was filed only on 9-10-1987 beyond a period of six months and hence hit by limitation prescribed under Section 11B of the CESA. When the matter was taken up in appeal before the Collector (Appeals), the appeal was also rejected. Hence the present appeal before us.
4. Shri R. Parthasarathy, the Ld. Advocate for the appellants, referred to their letter dated 7-4-1986 while filing the RT-12 Return for the month of March, 1986, pointing out that they have paid duty in excess as per the enclosed statement on account of late receipt of the Notification No. 175/86, on account of which there was a change in the rate of duly during the month of March 1986. They have requested for allowing the credit in the RT-12 Return. Not getting any reply, they also reminded the Supdt. on 20-8-1986. They reasonably waited for the credit to be given by the Supdt. under the impression that at the time of assessment, such a credit will be given. Hence subsequently under the oral instructions from the Supdt, they have filed a refund claim before the Assistant Collector, which came to be rejected as time barred. Shri Parthasarathy, the Ld. Advocate, pleaded that consequent on 1986 Budget and changes effected in the Notification and on the effect on Small Scale Units, there was considerable confusion and there was also delay in receipt of the Notification and the first opportunity when they came to know that excess payment has been made, while filing the RT-12 Return for the month of March 1986 they have claimed the refund byway of credit being given in RT-12 Return. The Supdt. either should have taken action on their request or immediately directed them to file the refund claim. Even to the reminder, he has not replied.
Hence they were required to file the refund claim before the Assistant Collector and he should not have rejected the refund claim without considering the same on merits. He, therefore, requested for remand to the Assistant Collector for considering their claim on merits. He referred to the decision of this Tribunal in the case of Collector of Central Excise v. Simplex Mills Co. Ltd. reported in 1989 (44) ELT 259 (Tribunal).
5. Shri K.M. Mondal, the Ld. SDR, on the other hand, contended that the regular refund claim has been filed only on 9-10-1987 and this is not disputed. If there had been an excess payment, the statutory requirement is to file the refund claim before the Assistant Collector.
Since this requirement has not been complied with, refund claim is liable to be rejected as time barred without going into the merits. The statutory authorities are bound by the limitation prescribed under the statute and thus he supported the orders of the authorities below.
6. After hearing both the sides; and on perusal of the documents we find that in this case, the letter giving the details of excess payment is found to have been submitted to the Supdt., while submitting the RT-12 Return for the month of March 1986 on 7-4-1986. If the Supdt.
felt that this is not a case where credit could be given straightaway under the RT-12 Return, either he should have forwarded this letter to the Assistant Collector or could have informed the appellants of their requirement for filing the refund claim. There is also a provision under Rule 173(1), where excess payment can be given due credit with the sanction of the proper officer, and when the appellants have approached the proper officer with such a request, there is a duty cast on him either to reject his request or direct him to file the refund claim before the competent authority. The protracted silence by the assessing officer on their request for giving credit could not be held against the assessee for the purpose of treating the claim as time barred. In this view of the matter, we hold that though the letter addressed to the Supdt. is for giving credit in the RT-12 Return in terms of Rule 173(1) of the Central Excise Rules, in view of, the silence or inaction on the part of the assessing officer, the subsequent refund claim, filed before the Assistant Collector is to be construed as the one originating from this letter. In this view of the matter, we hold that the plea of time bar cannot be raised in this case. We therefore set aside the orders of the authorities below and remand the case back to the Assistant Collector for considering the appellants claim for refund on merits and to pass orders in accordance with the law.