TMI Blog1983 (5) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... e case, it may be stated that the respondents cleared 27.779 M.Ts of Aluminium Lamp Cap Strips (coils) falling under Central Excise Tariff Item No. 27(b) on payment of duty during the period from 15-2-1976 to 5-8-1976. Out of this quantity, 3.602 M.Ts of the said products wee returned to the factory on 13-12-1976 and an intimation to this effect was given to the Excise Authorities in the prescribed form D-3 dated 13-12-1976. The respondents also claimed refund by an application dated 13-6-1977 of the Central Excise duty of ₹ 25,745.25 involved on the returned goods. It was stated by the respondents that the goods had been returned because of defects. Though the respondents had stated that the extract from the P.L.A. and triplicate copies of Gate Passes etc. had been submitted to the jurisdictional Superintendent and the same were not available with them, the Assistant Collector rejected the claim observing, among other things, that the duty paying and other connected documents had not been produced before him, that the returned goods could not be correlated with the original goods due to loss of identity at the time of re-processing/re-making with other goods in the factory, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -23 Part II cannot be refunded in cash or by cheque under Rule 56A of the Central Excise Rules, 1944. After hearing the respondents, he passed the following order :- I have gone carefully through records of the case and party s submission during personal hearing and hold that the goods involved attracted specific duty @ ₹ 600 per M.T. which was a concessional rate of duty as per Notification No. 164/75, dated 15-7-1975 as amended by Notification No. 49/76, dated 16-3-1976 whereas the tariff rate of duty was ₹ 3000 per M.T. Prior to 16-3-1976 the concessional rate was ₹ 1500 per M.T. whereas the tariff rate was ₹ 2000 per M.T. The assessees also failed to submit the relevant duty paying documents as promised by them during personal hearing. I, therefore, reject the claim of refund for ₹ 25,745.25 (Rupees twenty five thousand seven hundred forty-five paise twenty five) only of M/s. Indian Aluminium Co. Ltd. 5. Being aggrieved with this order the respondents went in appeal to the Appellate Collector who by his impugned order dated 5-12-1982 allowed the appeal setting aside the order of the Assistant Collector with direction to grant the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is satisfied. Reprocessing is not reason for granting the refund of the duty. The refund arises only as soon as the duty-paid goods are received back by the appellants in their factory. Therefore, the appellants are entitled to the refund. I allow the appeal and set aside the order of the Assistant Collector with direction to grant the refund. 6. In the appeal filed before us by the Collector of Central Excise, Calcutta, it has been urged that in terms of Rule 173L(3)(i), no refund shall be admissible of the duty paid in respect of opened packages containing goods with concessional rate of duty or partial exemption for small or cottage sector as set forth in the First Schedule to the Central Excises and Salt Act, 1944 or by a notification issued under Rule 8. It is submitted that the goods were originally cleared in cases i.e., in packed condition and not in opened condition, that the goods were cleared at the concessional rate of duty and not at the tariff rate of duty. The observations of the Appellate Collector in this behalf have been contested. Further submission in the appeal is that the Appellate Collectors observation that production of records is not very material run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the initial rejection of the claim by the Assistant Collector was on the ground that the duty paying documents had not been produced, and that the Appellate Collector set aside this order and remanded the case back to the Assistant Collector holding that it was not correct to say that the duty paying documents had not been produced and that a broad correlation would do. At this stage, there is no question of compliance or non-compliance with certain requirements of Rule 173L being raised by the Department. The said questions were taken up by the Assistant Collector in the subsequent adjudication proceedings. This action was clearly beyond the parameters set for him by the Appellate Collector s order of remand and was, therefore, clearly in excess of jurisdiction. In support of his contention Shri Mookherjee relied upon the two judgments to which reference has already been made. It could also be seen that the Appellate Collector s latest order had confined itself to the ambit set by the first order. On the merits of the case, Shri Mookherjee submitted that the Notification dated 15-7-1974 and dated 16-3-1976 fixed only the effective rate of duty and not the concessional rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter is not at large before the lower authority nor is such authority free to decide the case in his own way. It was also held that when an order is set aside and the case is remanded back to the authority concerned then while redeciding the matter, the jurisdiction and power of the lower authority is limited to the order earlier passed. In other words, if a point was not decided in the earlier order than it will be out of his jurisdiction to decide such a point on remand. 10. We have now to examine the Assistant Collector s second order of adjudication with reference to the remand order of the Appellate Collector dated 23-7-1979. The relevant portions of the Appellate Collector s order have been reproduced in para 3. It may be noted therefrom the only observation of the Appellate Collector which can be said to set a parameter for the Assistant Collector is : In such a case a broad correlation would do and it would be harsh to deny the benefit of Rule 173L on this ground alone . The Appellate Collector s direction is contained in the sentence : It is necessary to examine the original D-3 by the Assistant Collector:. After making this observation and giving this direction, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records is very material to determine the admissibility of the refund claim. On behalf of the respondents it was contended that the two notifications referred to earlier fixed only the effective rate of duty and not a concessional rate of duty. 12. We have carefully considered the submissions made by both sides. Rule 173L permits refund of duty paid on manufactured excisable goods issued for home consumption from a factory which are returned to the same or any other factory for being remade, refined, reconditioned or subjected to any other similar process in the factory. This has been made subject to certain conditions, such as, the period within which the goods should be returned to the factory, the manner of storage of such goods giving intimation to the proper officer etc. and we are not concerned herein with these conditions. Sub-rule 3 provides that no refund shall be paid until the processes referred to above (re-making, refining, etc.) have been completed and also provides that no refund shall be admissible in respect of the duty paid in respect of opened packages containing goods with concessional rates of duty or partial exemption for the small or cottage sector, as se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the goods can be said to have been cleared initially at a concessional rate of duty or under a partial exemption by a notification issued under Rule 8. The expression concessional rate of duty has not been defined but it was urged by Shri Mookherjee on behalf of the respondents that the notifications referred to earlier were applicable to all aluminium producers in respect of non-levy aluminium and, therefore, the said notifications could be said to have prescribed only an effective rate of duty and not a concessional rate of duty. This contention was sought to be rebutted by the Revenue on the ground that the said Notifications were issued in pursuance of Rule 8. 13. The point urged by Shri Mookherjee that if the Notification No. 164/75, dated 15-7-1975 as amended by Notification No. 49/76, dated 16-3-1976 were taken to fix a concessional rate of duty, the result would be that all aluminium producers would be debarred from availing themselves of the benefit of Rule 173L. We see force in this contention. This situation could well arise in respect of other goods falling under other items of the Central Excise Tariff Schedule. We would be reluctant to interpret the expressi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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