TMI Blog1984 (7) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... oncessions. 3. The learned Counsel for M/s India Cements Ltd. argued before us that the lower authorities were wrong in their understanding of the law. If notification 198/76-C.E. was meant to exclude cement reprocessed and cleared under Rule 96ZV, there would have been a specific provision to such effect. The factory crossed its base clearance on 17-2-1979. The scheme was to encourage factories to produce more and more and to do this, duty concession was made on certain clearances. There was nothing anywhere that would allow an interpretation that clearance of reprocessed cement under Rule 96ZV would be outside the scope of the concession. The counsel read out Notification 198/76-C.E. to demonstrate that even clearances under Rule 96ZV was not disentitled to its benefits. He pointed out that the notification makes special mention whenever any category of goods are to be excluded. He also read Rule 96ZV to emphasize his point. 4. The learned Counsel for the department said that the Rule 96ZV did not talk of clearance , it talks of delivery. Notification 198/76-C.E. bestows its concessions only within the narrow category of goods-clearances. Only clearance figures in this not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncession in Notification 198/76-C.E., because its clearance had already formed part of the calculation that formed base clearance. We cannot have a quantity of goods play more than its due and proper role. 8. The Notification 198/76-C.E. is a scheme of incentives to factories to increase their production. This is the reason why base periods and base clearances are given to enable the Central Excise assessors to judge if a factory had achieved well enough to earn the bounty. And different base periods and base clearances have been fixed for different kinds of factories. For example, a factory that cleared the specified goods for the first time on or after 1-4-1976, the base period will be 1975-76 and the base clearances will be taken as nil, and so on and so forth. Evidently, therefore, it must be a kind of clearance that can figure in such a scheme and as pointed out by the learned Counsel for the department, the clearances envisaged by this notification can only be the clearances which had been made possible by production. Mere clearances can have no meaning in this scheme for the obvious reasons that it is a scheme to encourage productivity and not merely to increase clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not contribute to clearances and cannot, therefore, form part of clearances for the purpose of calculating the dividing line. 13. During the argument it came out that the demand made by Central Excise for recovery of the duty of ₹ 3431.26 from M/s Indian Cements Limited was time barred. There is some doubt about this. This demand was issued on 16-10-1979. The factory reached the dividing line (base clearances) on 17-2-1979, which means the clearances after 17-2-1979 were the ones that would have received concessional duty clearances. 14. The absence of the 201.10 tonnes of cement would mean the factory would reach the dividing line later than 17-2-1979. But we do not know when that would be. It is possible that if the last concessional clearances in that year are taken into account as the ones on which short payment of duty has occurred, then the demand could be within time. Unfortunately, we have no details for ascertaining these things, so we will leave this matter alone and proceed only to deal with the matter as if the demand was barred by time under Rule 10. 15. The duty demanded was paid by the factory, albeit, as the counsel for M/s India Cements said, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay that duty amount. What is apparent is, a demand was raised by the Department for the payment of the duty amount which the appellants were to pay and in pursuance of that demand, the appellants paid that duty amount which might be barred by time. There is nothing on record to show and prove that the payment was made under protest and even if it was so, it does not make any difference. 18. The question arises whether the appellants can now come forward with the plea that the time barred duty amount, which they had paid in pursuance to the demand notice, should be ordered to be refunded back to them? 19. The answer is no. As has been laid down in a decision of Kerala High Court, Official Liquidator Palai Central Bank Ltd. v. Josef/August Kayalo Ckakan House Palai (AIR 1966 Kerala 121), limitation only bars the remedy, the right is not extinguished. If the claim of duty amount was barred by time, the remedy to recover that amount was barred but the right was still in existence. So, the department is well within its right to retain the time bar duty amount which was legally due to it from the appellants. 20. I, therefore, reject the appeal. 21. Per G. Sankaran. - I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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