TMI Blog1990 (2) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... d of any duty paid by him could make an application addressed to the Assistant Collector of Central Excise and submit the same to the Superintendent under whose jurisdiction the claimant's factory is situated? 3. Whether, in the latter event, for computing the time limit of six months under Rule 11, the date of receipt of application by the concerned Superintendent of Central Excise should be taken as the date of receipt of the application by the proper authority :- (a) at any time? (b) on or after 23-5-1979, the date of the Trade Notice No. 112/79 issued by the Collector of Central Excise, Cochin? 2. The respondent is the Revenue. The assessee is admittedly entitled to partial exemption from payment of excise duty in terms of Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1979, and that the refund claim was received in the office on 3-8-1979 and so the claim has been filed within the time prescribed. By order dated 31-1-1981, the Assistant Collector adverted to the above facts. But he held that the refund claim was received in his office only on 24-11-1979, which is after the expiry of six months' period fixed under Rule 11 of the Central Excise Rules, 1944. The claim was rejected. The appeal against this order was rejected by the Appellate Collector, Central Excise, by order dated 31-3-1981 - Annexure H. The Appellate Tribunal concurred with the said decision - Annexure J dated 8-4-1983. It is thereafter, at the instance of the assessee, the questions of law, formulated hereinabove, have been referred for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the expiry of six months. In this case Annexure B will show that the application for refund was made to the Assistant Collector, though it may be that it was routed though the Superintendent, in consonance with the earlier practice. The fact that there was delay in the forwarding of the application by the Superintendent's Office cannot visit the assessee with any penal consequences. The application having been made or addressed, to the Assistant Collector, as specified in Rule 11, should have been held to be filed within time. Counsel pressed into service the decision of the Supreme Court in Madras Port Trust v. Hymanshu International - (1979) 4 SCC 176 =1979 (4) E.L.T. (J 396) (S.C.) to plead that in cases where the claim for refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor is filed before the Superintendent of Central Excise. It should be filed before the Assistant Collector by the assessee within six months. 4. On hearing the rival contentions of the parties, we are of the view that the assessee should succeed. Before evaluating the rival pleas, put forward before us by the parties, we should remind ourselves of the observations of the Supreme Court, contained in Madras Port Trust case [1979 (4) SCC 176 = 1979 (4) E.L.T. J 396) (S.C.)]. The Court said : "The plea of limitation based on this section is one which the Court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such plea to defeat a just claim of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is whether in the instant case the application for refund was made to the Assistant Collector before the expiry of six months from the date of payment of duty. It cannot admit of any doubt that the application was made (addressed to the Assistant Collector of Excise); or directed to the Assistant Collector, as is evident from Annexure E, though routed through the Superintendent of Central Excise. It is common ground that the claim for refund was addressed to the Assistant Collector though it was routed or presented through the Superintendent of Central Excise. In a similar case, the Customs, Excise and Gold (Control) Appellate Tribunal, Special Bench 'D', New Delhi in R.S.R. Mohota Spg. Wvg. Mills Pvt. case [1989 (42) E.L.T. 731] at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen it was handed over to the Superintendent who must have received it on behalf of the Assistant Collector. If so the entire claim was within time under Rule 11 of the Central Excise Rules." The approach made in the said decision and the conclusion arrived at therein have our full concurrence. The claim for refund should be made to the Assistant Collector. That is all. It need not be presented before the Assistant Collector. It is also evident that consistent with prior practice the application was received by Range Office without demur. It was not returned as defective. The assessee was not directed to present the claim before the Assistant Collector. This is the normal course that should have been adopted, if the claim was not entertai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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