R. Jayaraman, Member (T)

1. All the three appeals, having the same issue (but facts being different) were argued together by both the sides. Hence, they are proposed to be disposed of by the common order.

2. The three appeals are directed against the orders of the Collector (Appeals) as per details below :

3. In all the aforesaid cases, the Collector (Appeals) has rejected the appellants' appeals against the endorsement made by the Supdt. requesting them to file separate refund claims in respect of certain alleged excess payments made in RT 12 returns for which they claimed credit in PLA to be authorised by the Supdt. The Collector (Appeals) has held in all the three cases that the Supdt.'s endorsement advising them to file refund claims is perfectly in order and hence rejected their appeals. The present appeals are against the said orders of the Collector (Appeals).

4. While recording the facts, we would deem it proper to bring out the details in each case for proper appreciation of the legal arguments from both the sides. The common factor is that in all the three cases, the appellants, while submitting RT12 returns, made an endorsement of excess payment and sought for credit of the excess payment in PLA.

5. Appeal No. 439/87-BOM : Endorsement made in RT 12 return for August, 1984 reads as

"Duty excess paid under GP 1 Nos. 412, 415, 421, 422, 424, 426, 443 and PLA entry No. 508 dtd. 30-8-1984. Refund requested". The forwarding letter to RT 12 return for Aug. 84 (letter dtd. 7-9-1984) is silent on how the excess payment has arisen but seeks for permission for taking credit of Rs. 1,24,690.47 in their PLA. Supdt. has assessed the RT 12 return on 31-3-1985 and made a remark requesting the appellants to lodge refund claim.

6. Appeal No. 440/87-BOM: They have given the particulars of excess payment of Rs. 3801.22 showing the invoice No. date, duty paid and duty payable and these details are contained in a letter dated 2-1-1985 addressed to the Supdt. They have requested for credit in RT 12 for the above amount. The Supdt. while assessing RT 12 returns has advised filing a regular refund claim.

7. Appeal No. 441/87-BOM : In the RT 12 return for Oct. 1984, the appellants indicated excess duty paid on GP 1 620 for Rs. 4400/-, Rs. 90/- on GP 1 621 and Rs. 1760/- on GP 1 623, without giving any reasons for the excess. Before Collector (Appeals), they have the particulars that Rs. 4400/- was double payment under G.P. No. 620 and 617 and Rs. 1760/- excess has been paid on G.P. 623 due to revision in the cost of those items.

8. Shri Baxi, the Ld. advocate, sought to emphasise on the following aspects of legal position, for allowing these appeals :

(i) Rule 173-I contemplates an enquiry to be done by the proper officer during assessment and hence even if the details as to how excess payments have been made are not furnished, he should cause necessary enquiry to be made and assessment should be done properly and the excess payment should be given credit. The powers of the assessing officer under Rule 173-I do not stop him giving credit only in respect of arithmetical/clerical errors, it extends to even other excess payments;

(ii) Section 11B provides for return of any duty paid. There is a saving Clause (4) to Section 11B, wherein it is stated that save as otherwise provided by or under this Act, no claim for refund of any duty of excise shall be entertained. When there is a provision under Rule 173-I for giving credit in the PLA in respect of excess payment and that is available to the assessee, he need not resort to filing a refund claim under Section 11B as directed by the Supdt.;

(iii) The Supdt. having failed to exercise the statutory powers conferred on him, and by giving belated direction to the appellants to file refund claim, knowing well that the refund claim is time barred at the time of making endorsement, would virtually deny the benefit of taking credit in the PLA of the excess payment.

9. For supporting the aforesaid legal proposi