V. Ramasubramanian, J. - (1.)THE assessee has come up with the above appeal under Section 35G of the Central Excise Act, 1944, aggrieved by the rejection of their demand for refund. Heard Mr. P.R. Renganath, learned counsel for the appellant and Mr. A.P. Srinivas, learned Senior Panel Counsel for the Respondents 2 to 4.
(2.)ON 9 -2 -2010, the appeal was admitted on the following substantial questions of law: - -
"(1) Whether or not the Tribunal erred in not considering the settled legal position that once duty had been paid for the same goods twice, the payment of duty for the second time will be available as refund, as there is no authority under the Central Excise Act, 1994 to collect duty twice for the same goods?

(2) Whether or not the Tribunal failed to appreciate that Section 11B of the Act would only prescribe one year from the date of payment of excess duty as the time limit for filing refund and in this view the procedure under Rule 173L of Central Excise Rules, 1944 has to be read harmoniously with statutory provisions?

(3) Whether or not the Tribunal erred in not appreciating the fact that D3 intimation filed on 16 -4 -1999 itself is an application for condonation of delay (in receipt of duty paid goods received for repair and return)?

(4) Whether or not the Tribunal erred in not allowing the refund claim by taking recourse to procedural infraction (Rule 173L) when in substance the refund claim related to the duty paid for the second time for the same goods -
Before we take up the questions of law for consideration, it may be necessary to record certain bare essential facts. They are: - -
"(a) The appellant which is engaged in the manufacture of fuel injection pumps falling under CSH 8413.80, cleared a particular quantity of manufactured goods on payment of duty on 30 -6 -1997 under three different invoices. They were cleared for supply to a car manufacturing company by name Paul Peugeot Limited.

(b) Unfortunately, out of 300 numbers of multi cylinder fuel injection pumps sold and delivered by the appellant on 30 -6 -1997, the buyer returned 252 pumps under an invoice dated 22 -3 -1999. The goods were actually received in the factory premises of the appellant on 15 -4 -1999. The return was in terms of Rule 57F(3) of the Central Excise Rules, 1944.

(c) While the duty paid on 300 pumps supplied by the appellant was Rs. 5,53,033/ -, the duty involved on the returned goods was Rs. 4,63,783/ -. Therefore the appellant filed D3 intimation on 16 -4 -1999 with the jurisdictional Central Excise Officer.

(d) Thereafter the appellant subjected the fuel injection pumps to a further process of manufacture and supplied them to another company by name M/s. TELCO. The sale and supply were made under the invoice dated 11 -10 -1999. After selling the returned goods to a different customer under the invoice dated 11 -10 -1999, the appellant made a refund claim for Rs. 4,63,783/ - on 14 -10 -1999.

(e) All the three authorities rejected the claim for refund on the basis of Rule 173L of the Central Excise Rules, 1944 contending that the return of goods did not take place within a period of one year from the date of payment of duty. Hence the appellant is before us."

(3.)THE claim for refund made by the appellant was in terms of Section 11B. Under sub -section (1) of Section 11B, any person claiming refund of any duty of excise, should make an application before the expiry of six months from the relevant date in such form and manner as may be prescribed. The expression "relevant date" is explained in Explanation (B). Explanation (B) reads as follows: - -
"(B) "relevant date" means, - -

(a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - -

(i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or

(ii) if the goods are exported by land, the date on which such goods pass the frontier, or

(iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India;

(b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid;

(c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory;

(d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction;

(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;

(ea) in the case of goods, which are exempt from payment of duty by a special order issued under sub -section (2) of Section 5A, the date of issue of such order;

(eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;

(f) in any other case, the date of payment of duty."