CCE Vs. I.O.C. LTD.

JUDGEMENT

(1.) IN this Appeal preferred by the Revenue the issue involved is whether the provisions of Central Duties of Excise (Retrospective Exemption) Act 1986 are applicable in respect of refund of duty paid after the issue of the Notification providing for exemption. Shri H.K. Jain, Ld. D.R. submitted that Notification No. 75/84 provided partial exemption from payment of duty to Benzene falling under Chapter 27 of the Schedule to the Central Excise Tariff Act. This Notification was amended by Notification No. 359/86 dt. 27.6.1986 by which Chapter 29 was also included in the exemption Notification and accordingly Benzene falling under Chapter 29 also become eligible for partial exemption from payment of duty. The Respondents M/s. Indian Oil Corporation filed a refund claim on 25.2.1987 for the period from 27.2.1986 to 30.9.1986 which was sanctioned to them. Subsequently a show cause notice was issued for realisation of the erroneous refund for the period from 27.6.1986 to 25.8.1986 as the refund claim for this period was thought to be time barred. The Assistant Collector, under his order 21.2.1989, confirmed the demand of the duty amounting Rs. 18,43,502.74 ps. holding that the refund for the period from 27.6.1986 to 25.8.1986 was hit by time limit under Section 11 -B of the Central Excise Act. On Appeal, however, Collector (Appeals) under the impugned order allowed the appeal holding that the claim had arisen out of Central Duties of Excise (Retrospective Exemption) Act and therefore it has to be governed under the provisions of the said Act. Ld. D.R. submits that the provisions of the said Act were not applicable to the refund for the material period as the refund pertains to the period when the Notification was in force. According to Section 2(4) of the said Act any person claiming refund of the excise under Sub -section (2) may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the commencement of this Act. As the present refund claim has not been made under Sub -section (2) of the said Act, the normal period of limitation as provided under Section 11 -B i.e. from the date of payment will be applicable and accordingly the amount confirmed by the Assistant Collector was justified.

(2.) COUNTERING the arguments, Shri R. Venkatraman, Ld. Advisor, submitted that after the amendment of Notification No. 75/84 by Notification No. 359/86 their customers had to apply for L -6 licence and to obtain CT. 2 Certificate etc. and as all these process would consume time the relevant date would start only after receipt of CT -2 Certificate. He further submits that assessments for the relevant period were completed only in October and November 1986 and they have filed refund claim within the six months from the date of assessment of RT -12 Returns. He also mentioned that it appears that assessments were provisional awaiting the finalisation of CT. 2 certificate and the satisfaction of the Assistant Collector about the receipt of the goods at the customers end. On a query from the Bench, however, the Ld. Advisor could not show any proof to the effect that the assessments were provisional under Rule 9(B) of the Central Excise Rules. He finally submits that the provisions of Central Duties of Excise (Retrospective Exemption) Act, 1986 are applicable as they had submitted refund claim with effect from 27.2.1986.