COLLECTOR OF CENTRAL EXCISE Vs. LOHIA MACHINES LTD

JUDGEMENT

(1.) BEING dis -satisfied with the impugned order passed by the Collector, Central Excise (Appeals), New Delhi, the Department has filed the present appeal.

(2.) Factual backdrops : The respondents M/s. Lohia Machines Ltd., Kanpur submitted an application on 5.11.1981 claiming refund of duty amounting to Rs. 16,504.01 paid by them on repaired/re -conditioned Machines during the period from 6.4.1981 to 10.8.1981 on the ground that the respondents had been receiving for repairs damaged components of the Machines which they had supplied to their customers, and that they had been repairing them and charging their cost of repairs under erroneous notion that it was job work, and consequently they had been paying duty on the job charges although they were exempted from paying such duty in terms of Rule 173H of Central Excise Rules, 1944. The Assistant Collector, Central Excise after the usual adjudication proceedings rejected the claim of the respondents holding that the respondents are not entitled for the refund as they had not fulfilled the requirements laid down in Rule 173H read with those specified in the Notification No. 5/70, dated 7.3.1970 of the Collector of Central Excise, Kanpur issued under the said Rule and also on the ground that the claim was time barred according to provisions of Section 11B of Central Excises and Salt Act, 1944. Against this order the respondents filed their appeal before the Collector (Appeals), who vide his impugned order allowed the appeal holding -

(3.) IN order to appreciate the controversy in hand it would be useful to refer the relevant Rule 173H of the Central Excise Rules, 1944. The said Rule so far as relevant lays down that (1) "the assessee may, subject to such conditions as may be specified by the Collector, retain in, or bring into, his factory or warehouse the goods on which duty has been paid if such goods -