2004 (97) ECC 62 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Chennai

Shri Jeet Ram Kait, Hon'ble, Member (T)

Lakshmi Machine Works

Versus

CCE, Coimbatore

Appeal No. E/363/2003

[Arising out of Order-in-Appeal No. 82/03-CE, dated 31.3.2003 and passed by Commissioner of Central Excise (Appeals), Coimbatore]

Final Order No. 413/2004, dated 30.4.2004, Certified on 19.5.2004

Refund (C. Excise)

Limitation -- Assessee claiming refund of customs duty paid by him by pressing decision of Government of India in MRF Ltd. order dated 184/91 dated 8.3.1991 wherein proof of export was not submitted the demand of duty charged to bond is enforcement of contractual obligation of exporter and not case of tax neither levied or nor paid -- Held, in this case duty has been paid without any contractual liability, hence they were required to apply within 6 months which has not been done by the assessee.

Refund rejected

PRESENT :

Shri G. Natarajan, Adv. for the appellant.

Smt. R. Bhagya Devi, SDR for the respondent.

Cases Cited :

In re: M.R.F. Ltd., 1991 (54) ELT 319 (GOI)......................................................... [Para 2]

In re: Unicare Remedies (P) Ltd., 2001 (133) ELT 509 (GOI).......................... [Paras 2 & 4]

Per : Jeet Ram Kait

This appeal by M/s Lakshmi Machine Works is directed against Order-in-Appeal No. 82/03-CE, dated 31.3.2003 and passed by Commissioner of Central Excise (Appeals), Coimbatore, who has rejected their appeal by sustaining the order passed by the lower adjudicating authority, who had rejected their refund claim of Rs. 2,62,413 as time barred under the provisions of Section 11B of the Central Excise Act, 1944.

2. Appearing on behalf of the appellant, Ld. Counsel Shri G. Natarajan submits that the Superintendent of Central Excise, Range IV D, of Coimbatore IV Division vide his letter OC NO. 311/95, dated 1.3.1995 as recorded in Para 3 of the Order-in-Original of the Assistant Commissioner of Central Excise (IV D) had instructed the assessee to pay the duty amount involved in the above case, where proof of export was not furnished by them. In this connection, Ld. Counsel submits that they had paid the Central Excise duty on 13.3.1995 and 16.3.1995. Whereas, the proof of export from the Maritime Collector was despatched vide their letter dated 11.7.1995, was received by them somewhere in October 1995. In this connection, they have filed an affidavit to support their contention. As per this affidavit filed by Shri R. Rajendran, Vice-President (Finance) of the appellant-company, they had received the letter of proof of export, bearing C.No. V/84/10/1/95, dated 11.7.1995, from the Maritime Commissioner during October 1995 and filed the refund claim with the department on 7.3.1996. It is, therefore, submitted that the refund claim was within 6 months from the date of receipt of the letter dated 11.7.1995, which was received by them somewhere in October 1995. He, therefore, submitted that the bar of limitation under Section 11B will not be operative in their case. In this connection, he also pressed into service the decision of the Government of India in RE: M.R.F. Ltd., Order No.184/91, dated 8.3.1991 reported in 1991 (54) ELT 319 (GOI), wherein it was held that in respect of export under bond direct from factory, if there is a delay in production of proof of export, established even though late, the duty cannot be demanded under Rule 14A of the Central Excise Rules, 1944 as a rule of thumb and, therefore, the delay of 8 months in the case of M.R.F. Ltd., was condoned by the Government of India as it was held to be mainly due to Customs authorities having lost the documents. He, therefore, submitted that the provisions of Section 11B will not be applicable and there is no delay in filing the refund claim, which was filed within 6 months from the date of receipt of the proof of export. Ld. Advocate has also pressed into service another judgment of the Government of India in RE: Unicare Remedies (P) Ltd., issued under Order No. 84 of 2001, dated 5.7.2001 reported in 2001 (133) ELT 509 (GOI), wherein also, it was held that in case where proof of export was not submitted, the demand of duty charged to bond is enforcement of contractual obligation of exporters and not case of tax not levied or not paid. It was also held that it is only a postponement of collection of tax if goods are not exported and the demand is not required to be made within 6 months from date of clearance for export from the factory within the meaning of Section 11A of the Central Excise Act, 1944. He, therefore, submitted that the impugned order of the lower authority may be set aside and that they should be allowed a refund of Rs. 2,62,413, which was rejected by the Assistant Commissioner of Central Excise (IV D), Coimbatore, as time barred under the provisions of Section 11B of the Central Excise Act, 1944.

3. Appearing on behalf of the Revenue, Ld. SDR submits that the time limit will be applicable from the date of payment of the duty under Section 11B of the Central Excise Act, 1944, which states that the period of 6 months will be applicable for the date of payment of duty. She also submitted that the letter dated 11.7.1995 issued by the Maritime Commissioner, Central Excise, Madras would not normally take 3 months to reach the assessee, because they must have been after the Maritime Commissioner, to seek proof of export and it was in their interest and so many other consignments were also involved in the proof of shipment. She, therefore, submitted that even on this account, for which they had filed their affidavit, they will not be entitled for the refund, which is time barred. She further distinguished the judgments pressed into service and they talk of situations, where exporter had not paid the duty and whether, he can be asked to legally pay the duty, if they are not able to show the proof of export within a period of 6 months, as a rule of thumb and the delay of 8 months in producing the proof of exports was condoned because, the delay was mainly due to Customs authorities having lost the documents, and the duty charged to bond was held to be enforcement of contractual obligation of exporter and not case of tax not levied or paid. Whereas, in the present case, they have paid the duty and they were required to claim the refund within 6 months from the date of payment of duty as per the provisions of Section 11B of the Act, ibid.

4. I have perused the records and the rival submissions and I am inclined to accept the submissions made by the Ld. SDR that the refund can be made within 6 months from the date of payment of the duty under Section 11B of the Central Excise Act, 1944. The judgment of the Government of India regarding M.R.F. Ltd., and Unicure Remedies (P) Ltd., referred Supra are clearly distinguishable and, therefore, cannot be made applicable to the facts of this case. In view of view position, the order passed by the Ld. Commissioner (Appeals) is upheld. Appeal rejected. Ordered accordingly.

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