S.C. Jain, Member (J)

1. The facts giving rise to this appeal are that a quantity of 11.866 KL of L.D.O. of 15°C was cleared from Barauni Refinery in Tank-lorry No. BRQ-1251 on 9 2-1971 and was consigned to M/s. Indian Oil Corporation Ltd. (Marketing Division) at Katihar on payment of duty under GP-1. Later on, the appellants submitted refund claim amounting to Rs. 2,252.76 on 28-9-1977 on the plea that the consignment had wrongly been cleared on payment of duty under GP-1 instead of under GP-2 and AR3A. For this consignment of L.D.O., GP-2 should have been prepared for its duty-free movement to the premises of Bihar State Electricity Board power station at Katihar, who is holder of L6 licence, under Chapter X Procedure of the Central Excise Rules, 1944.

2. The Assistant Collector, Central Excise, Patna by his order No. 26/CE R.E.F. (76-77) dated 14-11-1977 rejected the refund claim filed by the appellants holding that it is an express stipulation in the Notification Nos. 162/63 and 163/63, both dated 21-9-1963 that Chapter X Procedure shall be followed. Non-compliance of this provision makes refund claim liable for rejection.

3. The appeal before Appellate Collector, Central Excise, Calcutta was also rejected on the grounds that the supply was not made to Bihar Suite Electricity Board Power Station at Katihar and that the Chapter X Procedure as prescribed has not been followed in this case.

4. Being aggrieved by the said Order of the Appellate Collector, the appellants filed Revision Application before the Government of India which stands transferred to this Tribunal under section 35P of the Central Excises and Salt Act, 1944 and is treated as an Appeal.

5. We have heard Shri R. Venkataraman, Deputy Manager (Excise) for the appellants and Shri S.N. Khanna, J.D.R. for the Department and gone through the record.

6. The sole question for determination in this case is whether the appellants had complied with the provisions of Notification Nos. 162/63-CE and 163/63-CE, both dated 21-9-1963 or not ? As per these notifications, the EDO consignments utilised for generation of electricity for public supply in power generating stations were completely exempted from the payment of basic and additional excise duties.

7. In this case, the appellants drew our attention towards letter No. 27, dated 24-2-1977 written by the Superintendent, Bihar Electricity Board Power House, Katihar certifying that 12,000 litres of ED oil which was transported by tank-lorry No. BRQ 1251 under Gate Pass No. T/LA/9487, dated 9-2-1971 and received by them on 10-2-1971 at the power house was duly accounted for in their Register and oil was used for generation of electricity. Superintendent of Central Excise, Katihar also certified that Government power house, Katihar holding L6 licence No. 2-LDO/64, dated 6-3-1964 received 12,000 litres of EDO through tank-lorry No. BRQ 1251 vide G.P-1 No. T/LA 9487, dated 9-2-1971 of M/s. Indian Oil Corporation Ltd., Barauni Refinery which was entered in RG 16 Register on 10-2-1971 and accounted for power generation. Superintendent, Central Excise Katihar also certified that this quantity of EDO was duty paid consignment which should have been non-duty paid for industrial purposes.

8. On the basis of these admitted facts, the learned representative of the appellants submitted that the supply of the EDO in dispute was made to Bihar State Electricity Board, Katihar though through Indian Oil Corporation (Marketing Division), Katihar, and that that quantity of EDO was actually used for generation of electricity for public supply in the public generating station. According to Shri Venkataraman, the learned representative of the appellant, for all intents and purposes the conditions as laid down in these Notification Nos. 162/63-CE and 163/63-CE, both dated 21-9-1963 stood duly complied with and on technical breach of the so-called procedure as laid down under Chapter X is not sufficient to dis-entitle the appellants to claim the amoun