TMI Blog1983 (12) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, before the Assistant Collector of Central Excise, Rishra in respect of clearance of a car bearing Engine No. OEZT 19908, Chassis No. III-402357 cleared from the appellant s factory on the 24th March, 1981 on full payment of excise duty @ 25% basic and 5% as Special, leviable on private motor car and subsequent conversion into a taxi following registration as such with the State Authorities. The appellant had filed a refund claim in terms of the Notification No. 141/75, dated 23-5-1975 as amended and the claimed amount being the differential one between the full duty leviable and the concessional rate, was rejected by the Assistant Collector of Central Excise, Rishra vide Order-in-Original No. V (34) 18/1/Rishra/82, dated 20th July, 1982 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Channel have been mentioned. He has submitted the registration papers as well as the refund claim were filed before the Superintendent of Central Excise within the stipulated period and as such the appellant s claim was within the time and the same should be accepted. He has also drawn the attention of the Court to a photostat copy of the Certificate of Registration of car dated the 2nd day of June, 1981. He has also referred to a letter dated the 25th December, 1977 written by the Assistant Collector of Central Excise, Calcutta IV Division, Calcutta which permitted the appellant to follow a procedure for the clearance of cars to be used as taxis. The same is reproduced as under : Office of the Assistant Collector of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n at this end, wherein it is to be categorically mentioned the cases where para (b) of Notification No. 141/75, dated 23-5-1975 is fulfilled. The reasons for non-fulfilment should also be stated. I hope the above procedure will avoid the difficulties being experienced by you in getting permission from this office. Yours faithfully, Sd/- B.K. Ghosh Assistant Collector : Central Excise; Cal IV Divn., Calcutta. He has pleaded that since the Department has given them a facility of approaching the Superintendent of Central Excise, the appellant should be given the benefit and it may be deemed that the refund application filed with the Superintendent may be treated as filed with the Assistant Collector and the application has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Central Excise (hereinafter referred to as the said officer), is satisfied that such motor cars are required for use solely as taxis; and (b) 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 of the date of clearance of the motor car by the manufacturer after payment of duty or such extended period as the said officer may allow, to the effect that each such motor car has been registered for use solely as a taxi. He has pleaded that the Assistant Collector had received the papers on 2nd December, 1981 and for all purposes the date of filing of refund claim is 2nd January, 1981 and not 5th June, 1981 when the paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th such claims and the papers have been forwarded to Assistant Collector concerned for his disposal. He has also referred to the judgment of the Calcutta High Court in the case of Inchek Tyres v. Assistant Collector of Central Excise reported in 1979 E.L.T. J236 wherein it was held that when a statute makes such right of refund the petitioner is bound by such conditions imposed by such statute which has conferred such right. He has pleaded that in view of the provisions of Section 11B and the findings of the Hon ble Calcutta High Court in the case of Inchek Tyres, the appellant s appeal should be dismissed. 5. After hearing both the sides I find that Notification No. 141/75, dated 23rd May, 1975 lays down two conditions. Firstly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uperintendent of Central Excise within the time but Section 11B of the Central Excises and Salt Act, 1944 prescribed that the refund claim has to be filed before the Assistant Collector and in the instant case the same was filed on 2nd December, 1981. The provisions of Section 11B are quite explicit that the refund claim has to be filed before the Assistant Collector. I very respectfully agree with the findings of the Hon ble Calcutta High Court in the case of Inchek Tyres v. Assistant Collector of Central Excise that the petitioner is bound to follow the conditions imposed by a statute which confers such right to the petitioner. The intention of the Legislature as per terms of Section 11B is very clear that the refund claim has to be filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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