LML LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) The issue involved in all these appeals filed by M/S. LML Ltd. is whether refund of Central Excise duty is available to them under Rule 173L of the Central Excise Rules, 1944.

(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 -

(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. and 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.