TMI Blog1994 (7) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... 86-C.E., dated 1-3-1986. The Asstt. Collector of Central Excise passed various orders in original starting from 65/90 to 77/91 sanctioning in all Rs. 30,91,402.65 to them. However, he rejected the balance amount on time bar and on the ground that the certificates required to be filed with Asstt. Collector were not submitted within the stipulated period of three months as prescribed in the notification and the claim is unsubstantiated. The appellants contend that the ld. Asstt. Collector did not reject their claim on the ground that the satisfaction required in terms of condition (i) mentioned in S. No. 6 of the notification did not exists. Both the Revenue and the appellants felt aggrieved with the orders of the Asstt. Collector and filed respective appeals before the Collector (Appeals). The ld. Collector (Appeals) framed one issue that is as to whether the benefit of the Notification No. 162/86-C.E., dated 1-3-1986 can be claimed subsequently at the time of filing the refund claims. The ld. Collector on a very careful consideration of the case of both sides, applied the ratio of the Hon ble Supreme Court as rendered in the case of Collector of Central Excise v. M/s. Parle Exports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in between these two condition has to be read as if . In other words, he submitted that the said exemption is available to the assessee on satisfaction of the Asstt. Collector arrived from the act of the manufacturer, furnishing the said certificate from the concerned State Transport Authority. Ld. Advocate submitted that the certificates were obtained after the clearance of the Saloon Cars at a later period, well within 6 months, is sufficient for the satisfaction of the Asstt. Collector. Merely because, the certificates had been furnished at a later period, that by itself cannot be a ground to reject the claim. Ld. Counsel argued that the principle of promissory estoppel is applicable in the present case and the benefit of the notification cannot be denied to the assessee. Ld. Counsel placed reliance on the following rulings : Ratan Exports Ind. Ltd. v. Asstt. Collector of Customs - 1992 (62) E.L.T. 501 Cal. Collector of Central Excise, Meerut v. I.T.C. Ltd., Saharanpur - 1993 (67) E.L.T. 189 = 1992 (19) ETR 161. Hivelm Industries Ltd., Madras v. Collector of Central Excise, Madras - 1987 (27) E.L.T. 288 Bhadrachalam Paper Boards Ltd. v. Collector of Central Excise - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86-C.E., dated 1-3-1986 as amended exempted the goods specified in column (3) of the Table of the notification and falling under heading Nos. of the schedule of the Central Excise Act, 1985 specified in the corresponding entry in column (2) of the said Table, from so much of the duty of excise leviable thereon which is specified in the said schedule as in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table, subject to the conditions, if any, laid down in the corresponding entry in column (5) thereof : S. No. Heading No. Description of goods Rate Conditions 1. 2. 3. 4. 5. (S. No. 1 to 5 omitted) 6. 87.03 Saloon cars Thirty Per cent ad valolrem If (i) an officer not below the rank of an Asstt. Collector of Central Excise (hereinafter referred to as the said officer) is sa-tisfied that such saloon cars are required for use solely as taxies and (ii) the manufacturer furnishes to the said officer a certificate from an officer authorised by the concerned State Transport Authority in this behalf within three months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Law and the facts. The presumptions, if any, has to be that of bona fides unless proved otherwise. Therefore, if the description of the goods was not considered as sufficient for the purpose of approval it was open to the Asstt. Collector to have called for more details but it was not open to him to mechanically sign of. 12. We would like to take this opportunity to observe that the law casts a duty and responsibility on both the departmental officers as well as assessees (and this was true even in cases covered by SRP). The departmental officers, therefore, cannot ignore or avoid their own responsibility in the matter. 13. The Rule 173B providing for the filing of classification list clearly shows that what is required of the Asstt. Collector is the approval after such enquiry as he deems fit . The approval of classification list is an important part of the process of assessment and, therefore, the Asstt. Collector is required to be very careful and is expected to apply his mind before according approval. He is entitled to and indeed required to make such inquiries and summoned such information as may be called for in order to arrive at the correct decision. In other w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case. 7. The case of Ratan Exports Industries Ltd. pertains to importer complying with DEEC Scheme and the terms of Advance Licence. In the context of the case, the Calcutta High Court held that the principle of promissory estoppel would apply with all its force. The facts of this case and the principles laid down do not apply to the case in hand. 8. In CCE v. ITC Ltd., the Tribunal held that the conditions stipulated in the Notification No. 178/77-C.E. had been fulfilled and in that context held there was no requirement in the notification that the benefit therein must be claimed at the time of clearance of the cigarette and claim of refund of duty filed subsequently was maintainable. The terms of the Notification No. 178/77-C.E. is different than those of Notification No. 162/86-C.E. In this case, the manufacturer has not fulfilled the stipulated conditions of the notification and hence this ruling is not all applicable to the facts of the case. 9. In Hivelm Inds. case, the question pertained to set off benefit and availability of exemption under Notification No. 295/77-C.E. The facts are totally different and so also the terms of the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paras 6, 7, and 8 as follows : 6. The expressions rebate" and concession in the commercial parlance have the same concept. In Halsbury s Laws of England, 4th Edn. Para 198 it is observed as under : Application for rebate : When a rating authority receives an application for a rebate it has a duty to determine whether the residential occupier is entitled to a rebate and, if so, the amount to which he is entitled; and it must request him in writing to furnish such information and evidence as it may reasonably require as to the persons who reside in the hereditament, his income, and the income of his spouse. Unless the rating authority is satisfied that the residential occupier has furnished all the information and evidence it requires, it is under no duty to grant a rebate . (emphasis supplied) 7. In Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, Calcutta and others, the appellant which was a Public Limited Company, sought exemption under the provisions of the Bengal Finance (Sales Tax) Act, 1941 in respect of certain sales but did not produce before the Officer the declaration forms from the purchaser dealers required to be produced under the proviso to tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer, even without filing a declaration, can later prove his case by producing other evidence, is also rejected. This ratio applies on all fours to the case before us. As already mentioned the concession can be granted only if the raw material is used in the industrial undertaking seeking such concession. For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification. Failure to file the same would automatically disentitle the Company from claiming any such concession. 8. In any event the petitioner Company cannot claim concession at this distance as a matter of right. In Orissa Cement Ltd. v. State of Orissa Ors. it was observed thus: We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need not automatically result in a direction for a refund of all collections thereof made earlier. The declaration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector is to be acquired at the time of clearance. Revenue by its interpretation intends to add the words at the time of clearance in the said notification which is not permissible in view of the settled principles of construction of statutes. The learned advocate for the appellants has submitted that this condition is applicable only if the goods i.e. saloon cars are cleared at a concessional rate of duty. In the instant cases, he submits that the appellants had been clearing the goods at a higher rate of duty applicable to saloon cars and later on claiming the refund of duty on production of registration certificates of the Transport Authorities showing that the vehicles in respect of which refund claim is made have been registered as taxies and are, therefore, used solely as taxies. All these refund claims, he further submits are filed within the limitation stipulated in Section 11B of the CESA, 1944. Refunds for the past periods had been granted by the proper authorities on claims so made by the appellants. In this connection, he has invited attention to three such refunds given by the Assistant Collector s letters dated13-8-1990, 1-8-1990 and 2-8-1990 (available at pages 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfy himself, on such material as may be in his possession, that the saloon cars declared to be cleared at the lower rate of duty for the purpose of sole use as a taxi is actually required for that purpose. Condition No. (i), therefore, is applicable only in cases where lower rate of duty is initially claimed in terms of the said notification. Condition No. (i) to my mind is not really relevant in cases where higher rate of duty is paid at the time of clearance of the cars but a refund is later claimed on production of certificates as mentioned in condition No. (ii). 14.2 It is by now well settled position that benefit of exemption notification need not be claimed at the time of assessment. Benefit of a notification can be claimed even subsequently by way of filing a refund claim even if classification list has been got approved at a higher rate, or assessment of the goods has also been made at a higher rate in terms of the said classification list. This is so because Section 11B under which a claim for refund is made is an independent provision. Its effect and scope cannot be whittled down merely because an exemption notification has not been availed of at the time of clearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants herein had submitted classification list in 1990 claiming exemption under Notification 162/82 and in this connection, the jurisdictional Superintendent had written to them on 27-4-1990, after discussions with the appellants in a meeting of Additional Collector, Faridabad then the Assistant Collector, Gurgaon and the Superintendent had in that letter directed them to pay them rate of duty at 40% and afterwards had submitted proof of registration for taxi that the appellants may claim refund of the excess duty paid. They had written to the Assistant Collector on 3-5-1990 wherein they had stated that for direct taxi sale, the appellants had been collecting additional 5% as security amount to be released to the customers on submission of proof of registration as taxi. Some of the customers submitted the proof and the appellants sought permission from the Assistant Collector to release the security amount to the customers. The Assistant Collector also replied to them on 26-2-1991 stating that he has accepted the proof of registration in respect of certain vehicles specified in the letter. Subsequently, they had submitted refund applications which had been sanctioned. The ld. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India has since amended the notification by issuing of Notification 64/93 for the purpose of concessional rate of duty for cars cleared for use as taxis. According to this notification, the condition that in a case where saloon cars, after clearance have been registered for use solely as taxis, the manufacturer will be entitled to an exemption subject to the condition, viz. (i) the manufacturer at the time of clearance paid duty at the higher rate; (ii) the manufacturer furnishes to the Assistant Collector a Certificate from the State Transport Authority that the saloon cars have been registered for use as taxies within three months from the date of clearance; (iii) the manufacturer had not collected from the person in whose name the car have been registered as a taxi or in a case it collected and has refunded to such person, the amount equivalent of such further exemption of duty; and (iv) simultaneously, files a claim for refund of duty in terms of Section 11B Central Excises Salt Act, 1944. The above notification and conditions, therein, would support the procedure followed by the appellants and their interpretation of the notification, as now pleaded by the ld. Counsel, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, then it will make that condition in the notification otiose. It was argued that on the other hand, both the conditions have to be satisfied. The conjunctive `and links both the conditions in the notification. They had to be simultaneously satisfied. The condition is designed as a safeguard to check possibilities of fraud and in this context, the Supreme Court decision in the case of Indian Aluminium (supra) is of relevance as has been brought out in the order of the hon ble Member (Judicial). The ld. S.D.R. relied upon the case law reported in 1988 (38) E.L.T. 23 (Bom.) in the case of Indian Lead Private Limited v. Union of India and submitted that words employed in the notification have to be given due weight and there is no ground for looking to the intention which also need not be gone into if the words of the notification is plain and clear. In the present case, the condition (i) of the notification is that the Assistant Collector should be satisfied that the cars are required for use solely as taxis. If the Assistant Collector, at the time of clearance, is not so satisfied condition (i) is not fulfilled. Even the appellants themselves are not knowing about it at the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 141/75, dated 23-5-1975 do not indicate the matter of exemption and satisfaction of intended use at the time of clearance. According to this notification the Assistant Collector s satisfaction can be before or after clearance of the goods and depends only on the fact that the cars are required for use solely as taxis. In this case the cars were cleared on payment of duty at a higher rate but subsequently at the time of first registration those were taken to be taxis. In the circumstances, Government allow the revision application and order consequential relief. 20. Such an interpretation can be adopted as a useful guide as has been spelt out in the case of Collector of Central Excise, Guntur v. Andhra Sugar Ltd. - 1988 (38) E.L.T. 564. There also reliance was placed by the petitioner on a decision in Revision Application by the Govt. of India. The Supreme Court noted two orders in Revision by the Government on the issue and observed as follows : It is well settled that the meaning ascribed by the authority issuing the Notification, is a good guide of a contemporaneous exposition of the position of law. Reference may be made to the observations of this Court in K.P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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