SABARI STARCH Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THE petitioner is the proprietor of a factory engaged in the manufacture of starch falling under Item 15C of the Central Excise Tariff. In the year 1979 he had received an export order from Sri Lanka for the export of 50 metric tonnes of treated maize starch. For the purpose of fulfilling export order the petitioner had to purchase starch from M/s. Lakshmi Starch Limited, Hyderabad and had to reprocess the same with some chemicals in his factory before the goods became fit for export. THE starch purchased from the Hyderabad factory had been subjected to excise duty before they were purchased by the petitioner. After processing the goods in his factory of Pondicherry the petitioner exported 50 Metric Tonnes of processed maize starch to Sri Lanka on 21-6-1979 and 22-6-1979. On 18-10-1979 the petitioner filed a Rebate claim in Form-C under Rule 12 of the Central Excise Rules (hereinafter referred to as the Rules) claiming a sum of Rs. 13, 125/- on the ground that the goods had been exported and therefore they are entitled to refund of the excise duty paid on the goods. It is stated that the Assistant Collector, Central Excise, Pondicherry advised the petitioner to prefer the claim under Rule 173L of the Rules. On the petitioner making the claim under Rule 173L along with a letter of no objection from M/s. Lakshmi Starch Limited, Hyderabad the Assistant Collector ordered refund of sum of Rs. 12, 681.37. This order was made in or about 16-10-1981.

(2.) THE Collector of Central Excise (first respondent) issued a notice on 30-3-1982 calling upon the petitioner to show cause why the order of refund should not be cancelled. THE petitioner submitted his explanation on 15-4-1982. By an order dated 19-11-1982 the first respondent held that neither Rule 12 nor Rule 173L of the Rules would be applicable to the petitioner and accordingly set aside the refund order. THE petitioner thereupon filed an appeal with the second respondent which was dismissed on 11-5-1983. A Review Application under Section 35C(2) of the Act was also dismissed on 4-8-1983. THE writ petition is to quash the order dated 11-5-1983 and to pass such further orders as may be necessary.

(3.) THE question really is whether on the facts and circumstances of the case the petitioner is eligible for refund of excise duty paid by M/s. Lakshmi Starch Limited, Hyderabad, either under Rule 12 or Rule 173L of the Rules. In the order dated 19-11-1982 made by the first respondent, cancelling the earlier order of refund made by the Assistant Collector, it is pointed out that Rule 173L will not apply because the goods processed at the petitioner's factory at Pondicherry did not attract any duty liability. THErefore Rule 173L will have no application. Secondly it is stated that refund of duty under Rule 173L can be made only to the manufacturer who had actually paid the duty, which in this case is M/s. Lakshmi Starch Limited, Hyderabad. THE second respondent on appeal, adds yet another reason for denying the relief sought for by the petitioner. According to the Tribunal the "Return" contemplated under Rule 173L should mean only a return to the very same manufacturer, even though it may be, to the same factory or any other factory.