Harish Chander, Vice President

1. M/s. Tata Iron & Steel Co. Ltd. has filed an appeal being aggrieved from the order passed by the Collector of Central Excise (Appeals), Calcutta. Briefly the facts of the case are that the appellants had made refund claim of Rs. 10,168.90 on the ground that they had wrongly paid duty on 32.860 MT of Burnt Lime and 64.320 MT of D.B. Dolomite during the month of April, 1983. The appellants in the refund claim had contended that despatch should have been made without payment of duty while preparing or passing through any GP 2 and AR 3 and Chapter X procedure had to be followed and benefit of exemption Notification No. 118/75 dated 30-4-1975 as amended by Notification No. 105/82 had to be given. The Assistant Collector rejected the claim of the appellants on the ground that since the Chapter X procedure had not been followed and as such the appellants cannot be granted refund. Being aggrieved from the order of the Assistant Collector an appeal was filed before the Collector of Central Excise (Appeals), Calcutta. The Collector of Central Excise (Appeals), Calcutta had observed that the appellants were holding L 6 licence and the same was granted in the month of March, 1983 and he had taken the view that while granting the benefit of Notification No. 118/75 dated 30-4-1975 as amended by Notification No. 105/82 it was mandatory to follow Chapter X procedure and he had further observed that where the appellants had prepared themselves to follow the Chapter X procedure because they were having L 6 licence whereas clearance in respect of goods the refund claim was agitated by the appellants took place in April, 1983. Since, no Chapter X procedure was followed the refund claim was rejected.

2. Being aggrieved from the aforesaid order the appellants have come up in appeal before the Tribunal.

3. Miss Amrita Mitra, learned advocate appeared on behalf of the appellants. She reiterated the facts. She pleaded that there is no negligence on the part of the appellants. Bonafidely the appellants issued GP 1 and the appellants did not issue GP 2 and AR 3. She pleaded that mere fact that the appellants had taken L 6 licence in April, 1983 and clearances were affected in April, 1983 no adverse inference should be drawn. She argued that the appellants were vigilant all the time and whatever technical lapses were there these were inadvertent. She further argued that there was substantive compliance, as such the benefit of Notification No. 118/75 should be extended to the appellants. In support of her arguments she cited a decision in the case of Hiranyakashi Sahakari Sakkare Karkhane Niyamit v. Collector of Central Excise [MANU/CE/0357/1988 : 1989 (39) E.L.T. 658]. She had pleaded for acceptance of the appeal. Shri M.S. Arora who has appeared on behalf of the respondent relied on the order passed by the Assistant Collector as well as Collector (Appeals). He stated that following procedure of Chapter X in terms of condition laid down in the Notification No. 118/75-C.E. should have been followed. He has pleaded for the dismissal of the appeal.

4. We have heard both the sides and have looked into the facts and circumstances of the case. The appellants were granted L 6 licence in March, 1983 and CP 1 were duly issued. It appears that the appellants were quite vigilant. The appellant's case is fully covered by an earlier decision of the Tribunal in the case of Hiranyakashi Sahakari Sakkare Karkhane Niyamit v. Collector of Central Excise [MANU/CE/0357/1988 : 1989 (39) E.L.T. 658] Para 12 of the said order is reproduced below:-

"The only reason on which the benefit of notification under 118/75 has been denied by the Collector (Appeals) is that appellants did not follow the Chapter X procedure and they were required to satisfy the department regarding the use of steam in another factory of theirs. Unless, it is deliberate and malafide, failure on the part of the assessee to follow certain procedures cannot come in the way of