THIRD MEMBER ON REFERENCE : JUSTICE K. SREEDHARAN, PRESIDENT MATHER AND PLATT (INDIA) LTD. Vs. COMMISSIONER OF C. EX., CALCUTTA-I

JUDGEMENT

(1.) THE issue for consideration in this appeal is whether a refund claim can be filed under Section 11B of the Central Excise Act, 1944 even before finalisation of the provisional assessment under Rule 9B of the Central Excise Rules, 1944.

(2.) M /s. Mather and Platt (India) Ltd., Calcutta originally submitted a refund claim on 30 -3 -1990 for Rs. 21,28,768.67 in respect of clearance of Black/G.I. Pipes and Hose Pipes during the period from 18 -3 -1986 to 25 -2 -1989 stating that detailed particulars would be submitted shortly. The appellants, however, revised the said claim on 29 -6 -1990 in which the claim amount and the period were changed to Rs. 23,11,311/ - and 1 -3 -1986 to 30 -9 -1989 respectively, and submitted all relevant particulars in support thereof. The claim for refund arose on account of the fact that the appellants, under mistake of law and/or fact, had paid Central Excise duty on the bought out items cleared from their factory and used in installation fire protection systems in the premises of its customers. The Department accepted this position while approving the C/L on 29 -3 -1989, effective from 1 -3 -1988. A show cause notice was issued to the appellants asking them to show cause as to why the refund claim should not be rejected as time -barred as the same was submitted after expiry of six months from the date of payment. In his reply, the appellant contended that the assessments during the relevant period being provisional even at the time of filing the refund claim and in respect of which B -13 Bond was executed, the same was not hit by time -bar. The claim was, however, rejected by the Asstt. Collr. of Central Excise vide his Order dated 25 -8 -1995 on the ground that it was premature and advised the appellant to submit the same on finalisation of the provisional assessment . Being aggrieved by the said order, the appellant preferred an appeal with Commissioner (Appeals) who by his Order dated 11 -9 -1996 upheld the decision of the lower authority. Hence, this appeal before the Tribunal.

(3.) SHRI J.P. Khaitan, learned Advocate, appearing for the appellants, submits that the authorities below failed to appreciate that even before finalisation of the provisional assessments, the appellants are entitled to file refund claim in respect of the amounts collected under mistake of law and/or fact. According to him, Section 11B of the Central Excise Act, 1944 lays down an outer time -limit for filing refund claim as the period of six months from the relevant date and the appellant can file a refund claim at any time before expiry of the said outer time -limit. The authorities below cannot take away the vested right of the appellant to claim refund according to the provisions of Section 11B of the Central Excise Act, 1944, as in force at the relevant time. He contends that there is neither a conflict between the provisions of Rule 9B of the Central Excise Rules, 1944 and Section 11B of the Central Excise Act, 1944 nor do they give rise to any absurd situation. As such, argues the learned Advocate, the findings of the Commissioner are wholly erroneous and misconceived.