TIRUMALESA SUGARS PALAKOL Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) M/s. Tirumalesa Sugars, Palakol, applied for an ex-gratia refund of Rs. 16,013.31 Ps. being the differential duty between ad valorem rate of duty paid by them and revised compounded levy rate during the period from 1-3-1975 to 29-4-1975 on Khandasari sugar. The Assistant Collector of Central Excise, Rajahmundry, by his order dated 30-6-1976 rejected the claim for refund. The order of the Assistant Collector, Central Excise was served on Tirumalesa Sugars, the petitioner in this writ petition on 18-8-1976. Against the said order, the petitioner preferred an appeal to the Collector of Central Excise, Madras on 16-11-1976. The appeal was received by the Appellate Collector of Central Excise on 22-11-1976. The Appellate Collector of Central Excise rejected the appeal of the petitioner on the ground that the appeal was barred by time under Section 35 of the Central Excises and Salt Act, 1944. A further revision preferred by the petitioner to the Government of India was also unsuccessful. Hence this writ petition.

(2.) The only question that arises in this writ petition is whether the rejection of the appeal and the revision by the Appellate Collector of Central Excise and Government of India respectively as time barred under Section 35 of the Central Excises and Salt Act, 1944 is valid.

(3.) The learned counsel for the petitioner has brought to my notice a trade notice issued by the Collector, Central Excise, which lays down that the time limit laid down for statutory refunds in Rule 11 of the Central Excise Rules in respect of appeals preferred under Section 35 of the Central Excises and Salt Act would not be attracted to the ex-gratia relief granted to Khandsari Sugar Manufacturers for the period when the compound levy scheme was not in operation. This trade notice dated 19-4-1979 appears to have been issued on the basis of the advice given by the Ministry of Law, Government of India, dated 31-1-1979. It is, thus, clear that Section 35 of the Central Excises and Salt Act, 1944 read with Rule 11 of the Central Excise Rules is inapplicable to applications for ex-gratia refunds by Khandsari Sugar Manufacturers. The Law Ministrys advice and the trade notice further clarify that though there will not be any right of appeal as such under Section 35 of the said Act against the decision of the Assistant Collector rejecting the request for refund wholly or partially, representation at the administrative level can, undoubtedly, be entertained by the appropriate authorities. Therefore, in view of this classification issued by the Ministry of Law, Government of India, it would be just and proper to direct the Appellate Collector of Central Excise, Madras to restore the appeal of the petitioner and dispose it of afresh in accordance with law.