K.S. Dilipsinhji, Member (T)

1. M/s Shree Digvijay Cement Co. Ltd., have filed the present appeal to the Tribunal against the Order No. V-2(23C)1063/80 dated 7-2-83 of the Collector of Central Excise (Appeals) Bombay. Under the aforesaid order, the Collector confirmed the Order No. V.23C/18-130/79/1193 dated 27-2-1980 passed by the Asstt. Collector of Central Excise, Division III, Ahmedabad rejecting the appellant's claim for refund of duty amounting to Rs. 28,903.17 paid in excess during the period 1-12-1978 to 30-12-1978.

2. The facts of the case are that due to slump in the international market in the prices of fibre imported for the manufacture of Asbestos cement products produced by the appellants and classifiable under Tariff Item 23C of the Central Excise Tariff, the appellants wrote a letter dated 18-10-1978 to the Asstt. Collector of Central Excise, Ahmedabad, Division III intimating him of the change in prices of the fibre and stating that since the products of the manufacturer were being supplied to the State Governments under rate contracts they were bound to pass on the reduction in the prices to the State Governments and therefore they would claim refund of duty paid in excess. Thereafter the appellants filed price lists 104/78 and 105/78 for Asbestos pipes and couplings respectively on 1-12-1978 and requested for their approval. The price lists were approved on 11-7-1979 but effective from 1-12-1978. In the meanwhile, the appellants paid duty on the higher prices mentioned for the two products in their respective general price lists 26/78 and 88/78 for the period 1-12-1978 to 30-12-1978. The learned advocate explained that though the price lists were approved with effect from 11-7-1979, the appellants did not pay duty on the basis of the old price list with effect from 31-12-78 onwards. In reply to my question, the learned advocate stated that the appeal did not involve a question relating to the value of the goods for assessment of Central Excise duty. He added that there was no dispute in this behalf as the price lists filed by the manufacturers were accepted by the department. This view was also confirmed by the learned Depttl. representative. My attention was drawn on the endorsements on the two price lists which bear the fact that these were approved by the Superintendent of Central Excise.

3. Advocate Shri Patel stated that when the appellants received the Superintendent's letter dated 11-7-1979 referring to their price lists dated 1-12-1978 and approving the prices, the appellants wrote a letter dated 16-7-1979 to the Superintendent of Central Excise requesting him to refund the duty of excise on RT 12 paid in excess during December, 1978. But no reply was received to this letter and hence to be on the safe side, the appellants filed a claim for refund on 9-11-1979 along with the prescribed form in Appendix I, The advocate added that the relative RT 12 return for December, 1978 was assessed on 12-10-1979 only. During the course of this assessment, the Superintendent had examined the duty payments on all the gate passes but he allowed credit. of excess duty paid in respect of two gate passes Nos. 7086 and 7087 both dated 19-12-78. The advocate stated that he was not able to explain as to why the Superintendent took action for refunding the extra duty on two gate passes and ignoring the remaining gate passes. However, the appellant's claim for refund of duty filed in their letter dated 9-11-1979 was rejected by the Asstt. Collector under his order dated 27-2-1980 without issue of a show cause notice and without grant of a personal hearing. The reason for the rejection of the claim was that since refund application was received by the Asstt. Collector on 12-11-1979 and the period for claiming the refund of duty was from 1-12-1978 to 30-12-1978, the refund claim-was barred by limitation under the old Rule 11 of the Central Excise Rules 1944 and hence the claim was rejected. The Asstt. Collector further obse