G. Sankaran, Member (T)

1. The captioned appeal was originally filed as a revision application before the Central Government which, under the provisions of Section 35-P of the Central Excises and Salt Act, 1944, has come as transferred proceedings to this Tribunal for disposal as if it were an appeal filed before it.

2. The appellants are engaged in the manufacture of teleprinter tapes/ rolls. They submitted a claim for refund amounting to Rs. 96,447.09 paise being the duty paid by them on teleprinter tapes/rolls during the period from 9-7-1975 to 17-5-1977. The claim was in pursuance of trade notice No. 93/Paper-4/77 dated 28-5-1977. The Assistant Collector of Central Excise, Calcutta II Division, rejected the claim by his order dated 5-6-1978 on the ground that "The Rule of Law on notices contemplates that a notice is effective from the date of issue". The period of the claim being prior to the date of issue of the trade notice, he rejected the claim. In accordance with the Calcutta High Court's decision, the Collector reviewed the Assistant Collector's order. In his order-in-revision No. 11 of 1980 dated 4-10-1980, the Collector observed that the assessee could not establish the duty-paid nature of the paper rolls used in the manufacture of teleprinter rolls save in 6 instances of purchase of paper rolls. In the remaining cases, the purchases were from the market and the assessee could not produce any evidence of payment of duty on the paper rolls. The Collector further observed that the question of refund of duty on teleprinter rolls (T.P. rolls) manufactured out of the purchase of paper rolls on the bill dated 27-6-1977 (16,157.400 kgs) did not arise, since the assessee did not pay any duty on T.P. rolls after issue of trade notice 93/77 dated 28-5-1977. After considering the evidence before him, the Collector sanctioned refund of Rs. 36,919.23 being the calculated amount of duty at 25% ad valorem on the value of 14,432.350 kgs. of T.P. rolls at the average value of Rs. 10.23 per kg. This was out of a quantity of 16,036.500 kgs. of paper rolls purchased on 13-12-1976 after deducting 10% wastage occurring during the manufacture of T.P. rolls. It is against this partial rejection of the claim that the appellants are before us.

3. Before us, Shri K.K. Bannerjee, learned Counsel for the appellants, submitted that the question for decision was whether printing paper purchased from the market was to be considered as duty-paid paper or not. He stated that the assessment in the disputed cases were provisional. The assessee had executed a B-13 bond on 27-3-1976. under Rule 9B of the Central Excise Rules, 1944 for provisional assessment and the said bond was accepted on 10-9-1976. No question of limitation was raised by the lower authorities in respect of the claim. At any rate, the limitation at the relevant time was only with regard to claims for refund of duties paid through inadvertence, error or misconstruction. In this context, reference was made to the Bombay High Court's decision in the Swadeshi Mills Co. Ltd. v. Union of India and Ors. (1982 ECR 165D) wherein it had been laid down that the limitation in Central Excise Rule 11 was in respect of arithmetical calculation mistakes. The purchases of printing paper from the open market should be presumed to be duty-paid. If the department contended that the paper was not duty-paid, the onus was on it to prove its case. If indeed the paper had not discharged the duty burden, it would have been liable to seizure which had not happened. The question of making deductions in the refund on account of shortage or wastage did not arise since what was being claimed was the refund of the duty paid on the T.P. rolls and not of the duty paid on the printing paper used for their manufacture.

4. On behalf of the respondent, Shri S.N. Khanna, learned Departmental Representative, contended that the claim was hit by the time-bar contained in Rule 11. The impugned order clearly said the R.T. 12