CARBORANDUM UNIVERSAL LIMITED MADRAS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner is one and the same in all these three writ petitions. THE petitioner wanted to avail of the exemption in Notification no. 198/76 dated 16-6-1976, hereinafter referred to as the notification. THE years for which the petitioner wanted to avail of the exemption are 1976-77, 1977-78 and 1978-79. THEre has been correspondence spread over the years 1977 to 1979. THE last letter of the petitioner on the subject is dated 10-10-1979. THE second respondent declined to accord the exemption on the ground it would involve refund and the limitation aspect as per Rule 11 then in force would come in the way. THE order of the second respondent dated 15-10-1980 is being put in issue in these three writ petitions. THE impugned order of the second respondent runs as follows - "please refer to your letter dated 10-12-1979 on the above subject. It is seen from your above letter that you are trying to make out a claim on account of the exemption contained in Notification No. 198/76 dated 16-6-1976. In this connection, you are hereby informed that as per the provisions of Rule 11 (as revised with effect from 5-8-1977) no refund claims can be entertained, if they are preferred after the expiry of six months from the date of payment of duty except when the duty was paid under protest. Sub-rule ( i v ) of the above said Rule is relevant in this regard. THE provisions of Rule 11 being general in nature could apply for deciding the admi-ssibility or otherwise of the refund claims filed by the assessee in the context of the Notification No. 198/77 and therefore the time limit of six months in your case where duty was not paid under protest has to be reckoned with. reference to the date of payment of duty, fixing of base clearance and base year in respect of your company is therefore futile. THE whole matter on the above subject may be treated as closed. " *

(2.) THE petitioner also prayed for a direction from this Court to the second respondent to grant the exemption for the years in question as per the notification. Mr. Habibulla Badsha learned counsel for the petitioner would submit that unless and until the base period and the base clearance are determined and approved by the second respondent, the petitioner would not be in a position to work out and avail of the benefits of the exemption as per the notification and it is the-obligation of the second respondent only to determine and approve the base period and the base clearance for the years in question, since any assertion or declaration on the part of the petitioner with regard to the base period and the base clearances need not necessarily be accepted and approved by the second respondent while considering the question of exemption under the notification and only after the base period and the base clearances are fixed by the second respondent, the petitioner's claim for exemption could be considered; and viewed from this angle, there is no question of any limitation on coming in the way of the petitioner's claim for exemption being considered; and limitation for refund would run only from the date of determination and approval of the base period and the base clearances by the second respondent. On going through the notification, I find that there should be a determination of the base period and base clearances as per the ratio and the norms set out therein, to work out and claim the exemption thereunder. Certainly, this determination could not be that of the petitioner and it could be only that of the second respondent. Without such determination, it is not possible for the petitioner to quantify the benefits of the exemption as per the notification on their own and put forth the claim for refund. Refund presupposes quantification and that is feasible only after the base period and the base clearances are determined and approved by the second respondent. That alone could be the proper construction to be put on and the proper way to work the notification and in this view, I am not able to sustain the reasonings expressed in the impugned order of the second respondent that the limitation has come in the way and hence it will be futile to fix the base period and base clearances. Limitation will run only from the date of determination and approval of the base period and the base clearances. Hence, these writ petitions are allowed and the matter is remitted to the file of the second respondent for him to determine and approve the base period and the base clearances for the years in question as per the notification, so that there could be quantification of the refund claim of the petitioner and their rights worked out. I make no order as to costs.