9911796707
TMI Blog1993 (4) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals which had been filed by different parties, had been disposed of by this Bench remanding the matter to the Collector (Appeals) for de novo decision on the contentions raised in the appeal. He read out the relevant portions of the said order passed by us (Order No. S-642-644/A-716-718 dated 20-10-1992). He explained that the Assistant Collector had passed his order rejecting the refund claim filed by M/s. Orient Paper Mills who are the respondents in the present proceedings. Aggrieved with that order, they had filed an appeal to the Collector (Appeals) who passed his impugned order remanding the case to the Assistant Collector for deciding the claims de novo in accordance with the substituted sub-section (2) read with sub-section (3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and reject the claim on the ground that the relevant Notification No. 178/77 dated 18-6-1987 did not provide for grant of refund. It was also not open to the Assistant Collector to take the stand that all unutilised credits in their RG-23 Account would have lapsed with effect from 1-3-1986, as the appellate order directing grant of refund to them was passed in 1982 itself when they should have been given the benefit. He submitted that in a number of decisions, it has been held by the Tribunal that even if a Notification has lapsed the benefit which was available when the same was in force cannot be denied and refund would be admissible in such cases. He referred to the following decisions : 1. 1990 (47) E.L.T. 466 - Hindustan Lever v. Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llectors for de novo decision with reference to the amended provisions of Section 11B. His observation in the impugned order-in-appeal that the Assistant Collectors did not appear to have verified whether the burden of duty was passed on to the buyers or not nor recorded any findings thereon is an exercise in anachronism as the relevant amendment to Section 11B which provided for such verification was introduced into the statute only in September 1991 and hence not applicable when the refund claims were disposed of. Further it is strange that the Collector without deciding whether the refund claim on merits was admissible or not had straightaway linked the matter with the provisions of Section 11B relating to unjust enrichment. By following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey sent another letter on 26-2-1978 to which there was no reply. In Trade Notice No. 52/77 dated 30-12-1977 issued by the Collector of Central Excise, Madhya Pradesh indicated that procedures similar to the procedure followed for receiving goods on credit of duty under Rule-56A should be followed. The Collectorate of Central Excise, Bhubaneswar issued some procedures in December, 1977 and followed by another amendment in March, 1978. The mistake in the Instructions issued by the Bhubaneswar Collectorate in the month of December, 1977 was pointed out by them in their letter dated 21-3-1978. On receipt of the Instruction issued in the month of March 78 they applied to the Asstt. Collector in April '78 for permission to avail the credit. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise, it is seen that these are normal inputs for production of paper and paper boards. Since the appellants are maintaining accounts of the receipt and the quantity utilised of these materials for the manufacture of the finished products, it will not be fair to deny them the benefit of the exemption only on the ground that the Department has not been able to formulate a procedure to be followed for claiming the benefit of the exemption notification. On this consideration I allow the appeal and set aside the order of the Assistant Collector with direction to grant the refund in respect of the various inputs like Lime, Alum etc. 7. When the Collector (Appeals) had disposed of their appeal as above as early as 1982 it was not open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a direction to the Assistant Collector, it was incumbent on the part of the latter to implement the same unless the order in question was sought to be modified or set aside by proper remedial measures by way of appeal. In the absence of such a course having been followed, the contrary decision of the Assistant Collector cannot be countenanced. This aspect of the matter was totally missed by the Collector (Appeals) while deciding the appeal of the respondents before him. He had tarred all the appeals with the same brush of amended Section 11 B which, as discussed by us, was at once premature and inappropriate in the present case. 8. For the foregoing reasons, we allow the appeal by remand to the Collector (Appeals). The matter should be dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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