ASSOCIATED CHEMICALS Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) M /s. Associated Chemicals has filed an appeal against the Order passed by the Collector of Central Excise (Appeals), Bombay vide Order No. V -2(15 -A) 2069/79/2427 dated 25 -3 -82 and released on 17 -4 -82. The appeal was filed on the 25th day of November, 1983 as per registry. In column 3 of the Memorandum of appeal, the date of communication of the order appealed against has been mentioned as 21st April, 1982. The appeal was posted for hearing on the 25 -2 -1983. Shri S.V. Pikale, the Learned Counsel for the appellant has requested for adjournment and accordingly the appeal was adjourned to 25 -2 -83. An application for condonation of delay was also filed requesting to condone the delay of one month and eight days. The Learned Counsel for the appellant has submitted that the appellant had entrusted the matter to his Customs Consultant one Shri A.S. Wagh for preparation of appeal and submission thereof. The said consultant was not definite about the authority before whom the appeal was to be filed. It took him sometime to come to some decision, in the meanwhile, the appellant also became sick. A photocopy of the medical certificate to this effect has also been attached along with the petition for condonation of delay. The Learned Counsel has submitted that after the constitution of the Tribunal the appellant had immediately filed an appeal on 25 -11 -1982. In support of the application for condonation of delay affidavit of Shri A.S. Wagh, Customs Consultant dated 16 -2 -83 has also been filed confirming the contents of the application for condonation of delay.

(2.) I was satisfied that there was sufficient cause for condonation of delay and the delay was duly condoned on the 23rd February, 1983 and the appeal was also admitted for final hearing.

(3.) SHRI S.V. Pikale, the Learned Counsel for the appellant has submitted before me that the appellant is manufacturer of a product known as Urea Formaldehyde Resin besides other products and the appellant had paid excise duty under Tariff item 15A, for the period pertaining 7 -7 -1972 to 30 -9 -1974. In 1977 the department had clarified that this item was not covered by Tariff item 15A and was not excisable. The appellant had filed a refund claim for Rs. 9,344/ - in respect of duty paid during the period 7 -7 -72 to 30 -9 -74. The Counsel for the appellant has submitted before me that there were very large number of representations and the Government has acceded to the refund of claims. A trade Notice No. 82/1977 dated 18 -4 -77 was issued. A copy of the trade notice has been filed which is on page 1 of the Paper Book and he further submitted that the appellant had received the copy of the Trade Notice from the Indian Chemical Auxiliaries Manufacturers' Association vide their letter dated 6 -1 -78 and a copy of the letter is at page 2 of the Paper Book. He has submitted that the relevant date for the computation of limitation is the dale on which the trade notice came to the notice of the appellant. The refund claim was filed on 4 -6 -78. He has submitted that the limitation as provided under Rule 11 of the Central Excise Rules is not applicable in this case as duty was paid under mistake of law. Since the duty collected was not authorised, provisions of Rule 11 would not apply and the appellant's case is covered by provisions of Section 17(l)(c) of the Limitation Act, 1963. He has further submitted that the clarification was issued by the department in 1977 and the refund claim was made in 1978, i.e., within 1 year from the date it came to appellant's notice. Thus the same is within three years. The appellant has placed reliance on the Judgment of the Bombay High Court in the case of Svadeshi Mills Co. Ltd. v. Union of India, 982 ECR 165 D. He has also relied on the Supreme Court Judgment in the case of Madras Port Trust v. Hymanshu International,1979 ELT (J 396). The Learned Counsel has further relied on the following judgments : AIR 1980 S.C. 1037 in the case of Shiv Shankar Dal Mills v. Haryana State, Judgment of the Delhi High Court, in the case of Vazir Sultan Tobacco Co. v. Union of India and Ors., 1981 ELT 140 and the case of Patel India (Pvt.) Ltd. v. Union of India and Others, AIR 1973 SC 1300 etc. The Learned Counsel for the appellant has also submitted before me that the show cause notice dated 21st July, 1978 docs not refer to Rule 11 and para 3 of the show cause notice which is at page 22 of the Paper Book reads as under :