TMI Blog1991 (9) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants. 2. The appellants, vide their refund claim dated 21-8-1986, claimed refund of Rs. 12,454/- in respect of the duty paid on Voldram Model 257D, and cleared vide GP 1 No. 512/25-3-1986, pleading that initially the same machine was cleared on payment of requisite duty vide GP 1 No. 255/9-11-1984, for the purpose of display at the exhibition and was brought back on 6-12-1984, under appropriate D-3 intimation to the department, and was kept in the factory premises, from where the same was sold to a party and hence the same was removed from the factory vide GP 1 No. 512/25-3-1986 on payment of duty of Rs. 12,454.00, and pleaded that it was an excess payment of duty which required to be refunded. A show cause notice dated 16-12-1986, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund attracting provisions of Rule 173H of the Rules, but no provision existed in the said rule for grant of refund and reiterated the finding of the Assistant Collector that procedure of Rule 173L was not followed. 3. Mr. M.S. Sanklecha, the Ld. Adv. for the appellants pleaded that undisputedly, the same item had suffered double duty, and pointed out that there was no dispute as to the identity of the article. He stated that the department had not doubted that the item other than the one received back from exhibition, was removed under the subsequent gate pass, nor was it the case of the appellant, that the item had undergone any repair, remake or any such allied processes. He also admitted that the same was removed after 1 year 3 mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly beyond that period. He submitted that plea that Rule 173H may also not stand attracted was entirely a new plea, never raised any time before. He also pleaded that the appellants would not be entitled to refund if the duty amount is already recovered from the customers. 5. Considering the submissions made, it is an undisputed position that the item has suffered duty twice, and the amount recovered being admittedly more than legitimately recoverable, the excess amount recovered has to be refunded. 6. There is also no dispute over the issue that where the machine was initially removed for display at an exhibition, full duty at the then prevailing rate was paid and clearance was under proper documents and there is also no challenge over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with the provisions of sub-rule (1) (may, if not subjected to any process amounting to manufacture be removed) from the factory or warehouse without payment of duty subject to such conditions as may be specified by the Collector." Considering the provisions of clause (e) therein, the same appears to have been also providing for the cases where the duty paid goods are received for storage for retail sale, and the said provision has to be taken also for covering the cases where the items are received after display in exhibition. There is also a Trade Notice issued by the Nagpur Collectorate in this regard. To read the said provision as covering only the retained goods and not returned goods, would mean adding up some words whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer is not required to pay any duty on the second removal, where once the duty has been paid at the time of first removal. The duty paid second time has to be taken as excess duty paid, and claim for refund thereof, has to be entertained as an ordinary claim for refund. No specific provision is required to be made in Rule 173H to meet with the exigency of double payment, where provision therefore already exists elsewhere. 10. The Ld. JDR raised a doubt that the appellants may have recovered duty from the party. Here however is not the case for refund of duty amount. The duty is already paid at the first removal, and that was the correct stage for payment of duty. The amount paid as duty at the second removal stage was actually on excess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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