TMI Blog2003 (12) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... eclarations were verified by the proper officer and the quantity particulars were found correct. Appellants cleared 3,300 horns out of the returned 11,000 horns duly repaired and necessary entries were made in the statutory registers and the repaired goods were kept ready for despatch on receipt of orders. They have filed two refund claims for Rs. 77,480/- and another claim for a sum of Rs. 53,640/- on 18-11-97 under Rule 173L of the erstwhile Central Excise Rules, 1944 within six months from the date of reentry of the goods into their factory, as required under the rules. Show cause notices were however, issued to the appellants proposing to reject the claims on the ground that the repaired goods were still lying with the appellants and at that stage the question of allowing the refund does not arise. Though at the time of filing the reply, the repaired goods were not cleared on payment of duty, the same were later on cleared on payment of duty and the appellants submitted documentary evidence for having cleared 3,300 numbers of repaired horns again on payment of duty and this fact was also brought to the notice of the original authority at the time of personal hearing. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal, it is inter alia stated as under : (a) The lower appellate authority has stated totally different reason for rejection of refund claims by the original authority, inasmuch as the original authority had rejected the refund claim on the ground that the appellants have claimed the refund claim without specifying the amount of refund payable as per proviso (iv) of Rule 173L(1) of the rules ibid, while the lower appellate authority has rejected the claim on the ground that the appellants become eligible for refund only on payment of duty on the repaired/reconditioned goods. Therefore, the rejection of the refund claim by the lower appellate authority is on an improper understanding of the order passed by the adjudicating authority. (b) The lower appellate authority has not disputed the fact of payment of duty twice by the appellants and so also by the original authority. (c) The lower appellate authority himself has quoted the ruling of the Tribunal in the case of Harawala Engineering Works Pvt. Ltd. v. CCE, reported in 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Tribunal in the case of MV Enterprises v. CCE, Bangalore reported in 1996 (83) E.L.T. 529, wherein in similar circumstances refund of claim of the party therein was allowed. Further, in the case of CCE, Pune v. Tektronix Automation Electronics P Ltd. reported in 2001 (127) E.L.T. 164, it was held that in respect of repaired/reconditioned goods, refund claim can be made as soon as the reconditioning is made and payment of refund claim may be delayed up to the actual clearance of the goods for the second time. Similar view was taken by the Tribunal in the case of HD Alloys (P) Ltd. v. CCE, Meerut reported in 2001 (130) E.L.T. 385. The learned Counsel in the circumstances, prayed for allowing the appeal. 5. Shri A. Jayachandran, learned JDR appeared for the department and defended the impugned order. He has also referred to the para-wise comments received from the Commissionerate, a copy of which has been filed in the Court on the date of hearing. In the comments it is inter alia stated as under : (a) The party's statement that the lower appellate authority and the original authority have not disputed the fact of duty twi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repaired. (5) Details of the repair carried out on the goods have been submitted within the stipulated time. (6) The reprocessed/repaired goods (3,300 horns) have been cleared to the buyer on payment of duty though after filing the refund claim and documentary evidence to this effect has been submitted to the Department. (7) The re-processed goods have been duly accounted for and photocopy of the V form in support of this has been furnished to the Department. (8) The original authority has categorically stated in his order that formalities which are required to be observed under Rule 173L for grant of refund have been satisfactorily followed by the appellants except payment of duty again on the re-processed goods. 6.1 In the backdrop of the above undisputed factual position, the plea of the department that the party has not made payment twice, is contrary to facts. As regards the language used in Rule 173L(3) that the process should be completed within six months, the Revenue contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of the conditions prescribed in the proviso to Rule 173L(1) is that the amount of refund payable shall be in no case be in excess of the duty payable on such goods after being re-made, refined etc, the Appellate Tribunal in the case of Metazine (India) Ltd. supra held that restrictions placed under proviso (iv) is only in respect of duty payable on such goods after being re-processed and not to duty paid. It does not contemplate a situation that the re-processed goods should actually be cleared on payment of duty. So long as it is not disputed that the goods initially removed were cleared on payment of duty and refund amount claimed under Rule 173L does not exceed the duty payable on re-processed goods, refund is admissible". 10. We note that in terms of the Explanation (B)(b) to Section 11B, in respect of returned goods the refund claim is required to be made within six months from the date of re-entry of the goods for repair. Therefore, as rightly contended by the learned Counsel for the appellants, they have filed the refund claims before removal of the goods on payment of duty for the second time, to remain within the time-limit, prescribed under Explanation ibid and h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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