Per T.P. Nambiar: This is an appeal filed by the appellant Collector against the Order passed by the Collector of Central Excise(Appeals), Calcutta in Order No.306/ JSR/94 dated 22.11.94. In terms of the impugned order, Id. Collector( Appeals) allowed the refund claim of the respondents herein holding it as in time. In the Order-in-Original passed by the Assistant Collector, he had rejected the claim of the respondents.

2. The facts of the case that the respondents had filed a refund claim for a sum of Rs. 18,816.74 on 28.12.92 on the ground of excess payment of Central Excise duty. The goods in question had been cleared from the factory of the respondents on 24.6.92 under G.P. 1 Nos.327 & 328 both dated 24.6.92. The case of the Department is that the respondent firm had filed the claim for refund only on 28.12.92 which was after the stipulated period of six months. The respondents were issued a show cause notice asking them to show cause as to why the claim for refund should not be rejected. They had filed a reply thereto, stating that due to mistake they had paid the excess duty. Further they stated that they had made a claim for refund of the amount paid in excess, in their RT return for the month of June,'92 which was provisionally assessed on 10.8.92 by the concerned Superintendent of Central Excise with a direction to file a refund claim to the Assistant Collector concerned with respect to the excess duty paid. On receipt of that direction they had filed the claim petition on 28.12.92. Ld. Assistant Collector, however, held that the application for refund was filed beyond the period of six months and as such rejected the claim.

3. In appeal, learned Collector(A) held that in the instant case, the respondents herein had informed about the excess payment vide their monthly RT-12 return of June,'92 submitted on 7.7.92 and the date of excess payment of duty was 24.6.92. He relied upon the decision of the Tribunal reported in 1991 (54)ELT-293 in the case of Amrit Paper Mills Pvt. Ltd., wherein it was held that excess payment made by the assessee and requesting for refund of the same in the RT-12 return constitutes a valid refund claim. He also held that a formal refund claim subsequently made after completion of RT-12 assessment is not a fresh claim but a continuation to the original claim. He also held that the assessment was provisional and therefore, the claim is not barred by limitation. In this connection, he relied upon the decision of the Hon'ble Supreme Court repotted in 1991 (31) ECC-207 Accordingly, he allowed the claim of the respondent firm here in.

4. Against that order of the Collector (A) the present appeal is preferred by the Revenue.

5. Ld.J.D.R., Shri B.B. Sarkar appearing for the Department contended before us that the claim made in the RT-12 return is not a refund claim since that cannot be considered as a refund claim in the eye of law. He also contended that since the formal refund application was fi led beyond the period of six months, the same was barred by limitation. He, further, pointed out that in view of the amendment of Section 11B with effect from 20.9.1991 even Rule 173-I stands modified in terms of subsection (3) of Section 1 IB. It was, therefore, essential that any claim of refund after 20.9.91 should conform to the pattern prescribed and laid down under the amended Section 11B of the Central Excises and Salt Act, 1944. Therefore, he pointed out that Rule 173-I also is not applicable to the facts and circumstances of this case as it stands modified by Section 11B(3). In support of his contention, he relied upon the decision of a Single Member of this Bench in the case of Collector of Central Excise, Bhubaneswar Vs. M/s Orissa Cement Ltd. in Order No.A-814-815/CAL/1995 dated 14.7.95. He, therefore, submits that the refund is barred by limitation and die appeal may accordingly be allowed.

6. Replying the above-said contention, Id. Chartered Accountant, Shri G.K. Mundra appearing on behalf of t