Judgment

S.B.MAJMUDAR, J.

(1) THIS group of Civils moved by the same appellant M/s Hindustan Petroleum Corporation Limited under Section 35-A of the central Excises and Salt Act, 1944 (hereinafter referred to as "the Act") against the Union of India and the authorities concerned raise a common question of law for our consideration. That question is to the following effect - "whether the appellant who exported the excisable goods concerned as ships stores for consumption on board vessels bound for any foreign ports has to pay on these goods excise duty as per Rule 13 of the central Excise Rules or whether the appellants goods are liable to pay excise duty as per Rule 12 of these Rules".

(2) A few relevant introductory facts leading to these appeals are required to be noted at the outset, 1. Facts leading to Civils Nos. 2855 and 2856 of 1985

(3) THE appellants filed a refund claim for a sum of Rs. 18,859.50p being the duty paid by them on Light Diesel Oil (LDO) supplied as ships stores for foreign-going ships. The supplies were made on seven different occasions during the period from 15/2/1977 to 20/4/1978. The LDO so supplied was charged to basic excise duty, that is, the duty payable under the First Schedule to the Act read with any notification in force at Rs. 36.21 per kilo litre at 15øC in terms of central Excise Notification No. 349 of 1977 dated 16/12/1977. The refund claim was made with respect to Rule 13 of the Rules. It is the case of the appellants that no duty whatsoever was payable in respect of LDO and Furnace Oil supplied from bonded stock as ships stores going to foreign countries in terms of central Excise Rule 13. That they are therefore entitled to refund of the excise duty paid on these goods.

(4) AFTER holding adjudication proceedings the Assistant Collector rejected the claim. According to the Assistant Collector in the light of various notifications issued in connection with Rule 12 in respect of such supplies, additional excise duty was payable at the concessional rates in terms of Notification No. 232 of 1967 dated 9/10/1967. In short, the claim for refund was adjudicated in the light of Rule 12 and not under Rule 13.

(5) AGGRIEVED by this order the appellants went in appeal. The Appellate Collector turned down the claim of the appellants that the case was governed by Rule 13 without reference to Rule 12. The appellants claim for refund in connection with another item, namely, Furnace Oil also came to be rejected by the Assistant Collector and the appeal regarding the same was also dismissed by the appellate authority. Under these circumstances, the appellants moved two further appeals before the Customs, Excise and Gold (Control) Appellate tribunal (hereinafter referred to as "the tribunal"). The tribunal by its common order dismissed these appeals following the Delhi High courts judgment in the case of Hindustan Aluminium Corpn. Ltd. v. Supdt. of central Excise. Against this judgment of the tribunal the present two appeals are moved.

(6) THE appellants during the period 7/2/1978 to 4/5/1978 exported Light Diesel Oil (LDO) and Furnace Oil. According to the appellants as per Rule 13 of the Rules, no duty was payable on these exports. By an order dated 4/10/19788, Superintendent of central Excise, Calcutta II Division raised the demand for duty and therefore, the appellants paid the duty under protest. Thereafter, on 18/5/1978 the appellants claimed refund of the duty paid under protest. By orders dated 1/9/1978 and 7/9/1978, the Assistant Collector rejected the refund claim of the appellants. The appellants preferred appeals before the Appellate Collector who allowed the appeals by order dated 17/3/1981 and held that the refund claims were admissible as per Rule 13 of the Rules.

(7) A show-cause notice was issued by the government of India on 11/9/19811 as per Section 36(2 of the Act calling upon the appellants to show cause as to why the or