Per Shri P.C. Jain :

Briefly stated, the facts of the case are as follows :-

1.1 The Appellant herein submitted a refund claim of excess duty paid by him on account of provisional higher valuation on 13.9.93 in old proforma, i.e. Appendix 1 against clearance of the goods on 29.5.93 when the duty at higher valuation was paid by him. On 11.2.94, a letter was issued from the Office of the Assistant Collector pointing out the various deficiencies in the refund claim filed on 13.9.93. One of the deficiencies pointed out was that the refund claim was not submitted in the revised proforma which had been brought into force in September, 1991. By that time, however, the limitation of six months had expired. Nevertheless, on receipt of the letter dated 11.2.94 from the Office of the Assistant Collector, the Appellant submitted the claim in the revised proforma on 25.2.94.

1.2 The Assistant Collector, treating the refund claim as having been filed on 13.9.93 and that is within time and also noting down the fact that since a credit note has been issued to the customer for differential duty paid in excess, the burden of duty paid on the Appellant has not passed on to the buyers. Accordingly, he allowed the refund of duty of Rs. 37,050 to the Appellant. The Commissioner of Central Excise, in exercise of his powers under Section 35E of the Central Excises and Salt Act, 1944 was of the view that since refund claim on revised proforma was filed on 25.2.94, it was beyond the period of six months. Therefore, the refund claim should have been rejected. The Commissioner also felt that the Assistant Collector did not verify whether the burden of duty has been passed on to the customers viz. Bhilai (SAIL) was not examined by the Assistant Collector on the basis of contemporaneous document. On the direction of the Commissioner, the Assistant Collector filed an application before the Commissioner (Appeals) which was treated by him as an appeal. The said Commissioner (Appeals) has allowed the appeal of the Revenue and hence this Appeal before the Tribunal by the Appellant herein.

2.1 Learned Advocate Shri J.P. Khaitan has submitted that the claim was filed by the Appellant well within time of six months. In fact, it was within four months of the date of clearance of goods and date of payment of excess duty. Had the Appellant been guided properly in time, which guidance was given much later by the Assistant Collector by issue of its letter dated 11th February, 1994, the Appellant would have certainly filed the claim in the revised proforma well within time of six months in as much as the Appellant still had time of more than two months to file the refund application. He submits that the lower appellate authority has taken a highly technical view of the entire matter while rejecting the claim as time barred. He further submits that since the claim has been rejected on the ground of time bar itself by the lower authority, the said authority has not touched upon the second ground taken by the Appellant, viz. that the Assistant Collector has not verified the fact of the burden of duty passed on to the customers by various contemporaneous documents. Learned Advocate has submitted that the contemporaneous documents with regard to the burden of duty is the credit note which is not denied by the lower appellate authority or by the Revenue by its appeal before the said authority. Therefore, the burden of duty has certainly not been passed on to the customers. As regards the time bar, a highly technical view has been taken by the lower authorities. Learned Advocate, therefore, prays that the Appeal be allowed treating the refund claim having filed within time and the burden has not been passed on to the customers.

3.1 Opposing the contentions, learned JDR reiterates the findings of the lower authorities on the question of time bar. On the question whether the burden has been passed on or not, the lower authority has not applied its mind and the Bench may remand t