PHOSPHATE COMPANY LTD Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS is a revision application to the Government of India, which under Section 35P(2) of the Central Excises and Salt Act, 19W is to be proceeded with, as if it were an appeal filed before this Tribunal.

(2.) THE appellants are manufacturers of Fertilisers and Chemicals. Excise duty was imposed on Fertilisers for the first time w.e.f. 1 -3 -1969. On the midnight of 28 -2 -1969, the appellants had in their factory 6366.659 Metric Tonnes of fertilisers stored in bulk and some quantity packed in bags with which we are not concerned. Excise authorities were insisting on payment of duty on bulk quantity of fertilisers contending that they were not fully manufactured as they were not packed. The appellants were Members of 'Fertilisers Association of India'. The Association advised all its members to pay excise duty on bulk quantity under protest if payment of duty before removal was insisted upon by the Excise authorities and lodge a separate strong protest in this behalf. The bulk quantity of fertilisers after being packed in bags were removed between 15 -3 -1969 to 20 -8 -1969. The appellants paid Central Excise duty amounting to Rs. 2,00,414.72 paise endorsing on the A.R. 1 application and gate passes that they were doing so under protest. The appellants also wrote two letters dated 22nd March, 1969 and 12th April, 1969 registering their protest. On 11 -3 -1977, the High Court of Madras delivered a judgment in the case of E.I.D. Pvt. Ltd. and Ors. v. Union of India [reported in 1978 ELT (J 18)] inter alia holding that packing is not manufacture. The appellants then by their letter dated 15 -5 -1977 submitted a formal claim for refund of Central Excise duty amounting to Rs. 2,00,414.72 paise. The Assistant Collector of Central Excise by his order dated 7 -7 -1978 rejected the claim holding that prior to 1 -3 -1969, the bulk stock of fertilisers was not a finished product and that the claim was barred by limitation under Rule 11 of the Central Excise Rules, 1944. In appeal, the Appellate Collector of Central Excise, Calcutta relying on the Madras High Court judgment (Supra) held that quantity of fertilisers in the condition in which it was on 28 -2 -1969 was fully manufactured. He, however, rejected the appeal on the ground that the refund application was not filed within the period of limitation under Rule 11 and Rule 173J of Central Excise Rules, 1944 (as they existed at the material time). Aggrieved with this order, the appellant filed revision before the Central Government, which as already pointed out above is to be disposed of as an appeal, as if it were presented before this Tribunal.

(3.) ON the date of ihearing, Shri N.C. Sen, Advocate represented the appellants. Shrimati Vijay Zutshi, Senior Departmental Representative represented the Respondent; Collector. They were heard and the record perused.