TMI Blog1990 (9) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... d with engines. They also manufacture skip loader which has a detachable container called bucket. 3. They submitted a classification list effective from 1-4-1987 and indicated buckets under sub-heading 8708.00 and the rate of duty as 20% ad valorem. The Asstt. Collector while considering the matter modified the classification list. He classified buckets under 8428.00 and indicated then rate of duty as 15% ad valorem (basic duty) on 27-7-1987. 4. Pending approval of the said classification list, the respondents had removed 4 buckets under GP 1 after payment of duty at the declared rate of 20% ad valorem. Subsequently they filed RT 12 returns showing this payment. 5. RT 12 was assessed by the Superintendent of Central Excise on 31-7-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty after the final assessment in the case. 12. It was the department s contention that the respondent has not paid the duty provisionally and the assessment had not been made provisionally under Rule 9-B, therefore the question of final assessment does not arise; hence the provision of Section 11B(5)(e) could not be made applicable. 13. In the instant case the party had on its own volition classified the goods under 8708.00 and paid duty at the rate of 20% ad valorem. 14. The classification list was approved on 29-7-1987 and the impugned goods were rightly classified under Chapter heading 8428.00 attracting duty at the rate of 15% (instead of 20% ad valorem) claimed/paid and collected by the party. 15. The learned consultant drew at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Salt Act, 1944 dealing with the relevant date . 20. Further another view could be taken in the matter from the point of view of completion of RT 12 returns as no assessment is final unless the return is checked and passed as being in order. He would like to cite in this connection Govt. of India s order in revision in the case of M/s Standard Tin Works of New Delhi [1977 (1) E.L.T. J 127]. Their RT 12 return was passed and approved only on 31-7-1987 and counting from this date their refund claim was within six months time limit prescribed under Section 11B. 21. It is also their contention that as a matter of fact when the Asst. Collector approved the rate of duty as 15% ad valorem (as against 20%) declared by them, the Asst. Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em) under TI 87.08 BEFORE the approval of the classification list by the Assistant Collector, (2) that the Assistant Collector DID NOT approve the above rate, and (3) that the Asst. Collector determined the appropriate rate as 15% ad valorem (under T.I. 84.28), and (4) that this assessment was done by the Assistant Collector on 27-7-1987. 29. Now in terms of the ratio of this Tribunal s order in the case of Oriental Insulated Conductors Pvt. Ltd. [1990 (47) E.L.T. 630 (Tribunal)], the amount determined by the assessee himself in anticipation of assessment by the proper officer did not amount to duty. Hence the payment thereof did not amount to payment of duty and deposit thereof could only be considered as that of deemed duty determined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -payment (by way of deposit in anticipation of Assistant Collector s order or otherwise) then it was his duty in terms of Rule 173(I) to make appropriate adjustment by way of allowing/approving credit or debit as may be required to be made at the time of completion of RT 12 and finalising the assessment in terms of 173(I). 33. In other words in such cases even a refund application was not called for and the action was required to be taken by the Superintendent to implement the Assistant Collector s order irrespective of whether a request to that effect was made or not made by the assessee. There is however no bar for an assessee to draw attention of the authorities towards this requirement by way of a letter or application for refund or o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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