Fine Composite Pvt. Ltd. Vs. Collector of Central Excise - Court Judgment

Excerpt:
1. though notice of hearing has been duly acknowledged by the appellants as well as by the advocate on record, none turned up for hearing.2. the appeal is against the order in appeal no. v-2(17) 338/85, dated 30-9-1986. the issue relates to rejection of their refund claim as time barred. the duty payment has been made during the period from 11-3-1982 to 7-2-1983 and the refund claim said to have been filed on 21-2-1985 and hence the asstt. collector, has rejected the refund claim as time barred. the appellants, however, contended that they have filed a protest letter dated 23-3-1982 which was received by the asstt.collector on 24-3-1982. on a perusal of the said letter dated 23-3-1982, we find that the appellants have indicated that their goods are classifiable under t.i. 17(4) and are exempted in terms of notification no. 66/82-c.e., dated 28-2-1982, and since no clarification is available, they are paying excise duty under protest w.e.f. 1-3-1982. however, the asstt. collector has rejected the refund claim as time barred and the collector (appeals) has also upheld the said order. since the aforesaid facts are not disputed, we have decided to disposd of the appeal in the appellant's absence. since there is a protest letter delivered to the asstt. collector on 24-3-1982, time bar of the refund claim cannot be said to have been attracted with effect from 24-3-1982. hence, refund claim should be entertained on merits for the period from 24-3-1982. the objection taken by the lower authority that the appellants have not filed the appeal against the classification approved and the order of the collector (appeals) allowing their appeals earlier relates to some other period, cannot be said to be sustainable, when there is a protest letter effective from 24-3-1982. this protest letter should be vacated by a speaking order.this appears to have not been done. in the circumstances, we remand the case back to the asstt. collector for entertaining the refund claim on merits and pass orders in accordance with law.

Judgment:
1. Though notice of hearing has been duly acknowledged by the appellants as well as by the advocate on record, none turned up for hearing.

2. The appeal is against the order in appeal No. V-2(17) 338/85, dated 30-9-1986. The issue relates to rejection of their refund claim as time barred. The duty payment has been made during the period from 11-3-1982 to 7-2-1983 and the refund claim said to have been filed on 21-2-1985 and hence the Asstt. Collector, has rejected the refund claim as time barred. The appellants, however, contended that they have filed a protest letter dated 23-3-1982 which was received by the Asstt.

Collector on 24-3-1982. On a perusal of the said letter dated 23-3-1982, we find that the appellants have indicated that their goods are classifiable under T.I. 17(4) and are exempted in terms of Notification No. 66/82-C.E., dated 28-2-1982, and since no clarification is available, they are paying excise duty under protest w.e.f. 1-3-1982. However, the Asstt. Collector has rejected the refund claim as time barred and the Collector (Appeals) has also upheld the said order. Since the aforesaid facts are not disputed, we have decided to disposd of the appeal in the appellant's absence. Since there is a protest letter delivered to the Asstt. Collector on 24-3-1982, time bar of the refund claim cannot be said to have been attracted with effect from 24-3-1982. Hence, refund claim should be entertained on merits for the period from 24-3-1982. The objection taken by the lower authority that the appellants have not filed the appeal against the classification approved and the order of the Collector (Appeals) allowing their appeals earlier relates to some other period, cannot be said to be sustainable, when there is a protest letter effective from 24-3-1982. This protest letter should be vacated by a speaking order.

This appears to have not been done. In the circumstances, we remand the case back to the Asstt. Collector for entertaining the refund claim on merits and pass orders in accordance with law.