S.K. Bhatnagar, Member (T)

1. The learned Counsel stated that the appellant is engaged in the business of manufacture and sale of Steel Bolts and Nuts falling under Item No. 52 of the First Schedule to the Central Excises and Salt Act, 1944 duly authorised under Central Excise licence L4 No. 5/AIR-5/BNS/CAL-V/80.

2. The Government of India Notification No. 83/83-C.E., dated 1-3-1983 issued under Rule 8(1) of the Central Excise Rules, 1944 provided for full exemption of duty leviable on the excisable goods specified therein upto the value of Rs. 7.5 lakhs during the financial year 1983-84. The Bolts and Nuts falling under Item No. 52 of the Central Excise Tariff was specified in the notification. Accordingly, the benefit of exemption under Notification No. 83/83, dated 1-3-1983 was available to the manufacturers of bolts and nuts.

3. The total value of the excisable goods cleared by the appellant during the preceding financial year ending 31-3-1983 being far less than Rs. 25 lakhs, the appellant was entitled to clear bolts and nuts without payment of any duty upto the value of Rs. 7.5 lakhs during the financial year ending 31-3-1984.

4. The appellant in accordance with the provision of Rule 173B(1) filed a classification list effective from 1-4-1983. In the said list the appellant declared its products and claimed the exemption of duty under Notification No. 83/83, dated 1-3-1983 during the financial year ending 31-3-1984. The proper Central Excise Officer after due verification of the declaration approved the list on 19-8-1983 without any modification.

5. The appellant manufactured and cleared bolts and nuts in the month of January 1984 without payment of duty in accordance with the approved classification list. In the month of February, 1984, the appellant did not clear any goods from its factory. But on 14-3- 1984 it cleared from its factory 6875 kgs. of bolts and nuts valued at Rs. 65,600/- under Gate Pass No. 10. The appellant inadvertently paid duty on the said consignment of bolts and nuts by debiting the PLA to the extent of Rs. 10,332/- as Basic Excise Duty and Rs. 492/- as Special Excise Duty. This payment was made by the appellant under a mistake of law thinking that the total clearance value has exceeded Rs. 7.5 lakhs.

6. By its letter dated 8-9-1984, the appellant requested the Jurisdictional Superintendent of Range No. VI to assess the goods cleared on 14-3-1984 at Nil rate of duty as such rate would be in conformity with the approved classification list. A photocopy of the said letter has been annexed to the memorandum of appeal as Annexure "B".

7. On 12-12-1984, the appellant received the assessed copy of the monthly returns in Form RT-12 for the month of March, 1984 alongwith a forwarding letter dated 10-12-1984. The Range Superintendent had assessed Nil Duty on the goods cleared and advised the appellant to file an application for refund.

8. In compliance with the said advice of the Range Superintendent the appellant submitted an application for refund of the amount paid in excess.

9. The learned Assistant Collector rejected their refund claim as time barred. Their appeal against the said order was rejected by the Collector (Appeals).

10. Their contention was that their refund claim arose out of an assessment on RT-12 on March, 1984. Since the Superintendent had assessed RT-12 at Nil rate, therefore, he ought to have allowed adjustment of the amount mistakenly paid in excess.

11. The Superintendent had erred in advising them to file a refund application and they had erred in following the said advice. The Assistant Collector, therefore, should have merely ordered the correction and asked the Superintendent to allow adjustment by crediting the amount in PLA. It was their contention that the Assistant Collector has erred in rejecting their claim as time barred and the Collector (Appeals) has erred in upholding the order of the Assistant Collector.

12. It was their contention that the provision of Rule 173I was framed u