TMI Blog1985 (11) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... rom P.L.A. etc. and requested for condonation. The Assistant Collector held that whatever be the reasons for the delay the provisions of Section 11B are specific in respect of time limit. Accordingly, he rejected the claim to the extent of Rs. 55,315.64 as barred by limitation under Section 11B of the Act. When the matter was agitated in appeal before the Collector of Central Excise (Appeals), he held that the relevant date for purposes of computing the time limit is the date of payment of duty; there was therefore no scope for computing the time limit with reference to the date completion of the assessment memo in the monthly R.T. 12 return, in which the clearances in respect of the period were entered. He accordingly rejected the appeal. 2. Before us, the advocate for the appellant urged that Government have accepted in principle that excise duty should not be levied on goods leviable to duty under Tariff Item 68 if transferred from one factory to another of the same manufacturer; hence the appellants are not liable to pay the duty on such transferred goods falling under Item 68 of the Tariff. Without prejudice to this contention, it was also urged that payment of duty at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t current. Thus the duty paid by the assessee in terms of Rule 173F, if as a result of his own determination, is only a provisional one. 3. The Advocate referred to the case of Collector of Central Excise, Bangalore v. Karnataka Scooters Ltd. (1983 ECR 745D-Cegat, Madras: paras 5, 7 and 8). In that case, this Bench of the Tribunal has referred to the decision of the Madras High Court in the case of Binny Ltd. Madras v. Superintendent of Central Excise, Guindy XIV wherein it has been held by His Lordship of the Madras High Court that any payment or collection of tax made on the basis of returns submitted under the self-removing procedure cannot be construed as a complete assessment and, as long as a completed assessment has not taken place there is no necessity for the department to resort to its powers under Rule 10 for recovery of short-levied duty surcharges". Per contra the duty paid would impliedly be a provisional payment. Next he referred to the case of Bawa Batteries v. Union of India - 1981 E.L.T. 114 (para 12) - wherein Their Lordships of the Delhi High Court observed, It is quite clear that there could have been no non-levy or short-levy except by a proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessee under the S.R.P. The payment made in terms of that procedure is not provisional but final, though it is subjected to the corrective factors referred to in Rule 173-I. Rule 173F itself states that the duty shall be determined and paid by the assessee. The duty is actually paid on the basis of a determination based on an approved price list and an approved classification list. Except for arithmetical error or factual mistake regarding the quanta of goods cleared, or in rare instances of suppression of information, the amount determined by the assessee would also be the amount finally assessed by the officer. He therefore urged that the provisional assessment referred to in Rule 9B does not encompass the payment under the S.R.P. 5. We have considered the arguments of both sides. To enable one to appreciate the scope of duties collected under the Self Removal Procedure (SRP) in terms of Chapter VII-A of the Rules, it would be desirable to recapitulate the principal provisions of that Chapter. 6. According to Rule 173A in respect of goods to which the provisions are applied by a notification of the Central Government - in the present case the goods are so notified - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rule further provides that where the price list filed by an assessee is not acceptable to the proper officer, the assessee shall be given an opportunity to put forward his view of the matter and be heard in person, if so desired, before the price list is modified by the proper officer. The Rule also provides for calling for documents, examination of persons etc. in coming to a finding as to correct value to the approved in the price list. Rule 173F provides that where the assessee has complied with the provisions of Rules 173B and 173C he shall himself determine his liability for the duty due on the excisable goods intended to be removed ; he shall not otherwise remove such goods and that too, until after he has paid the duty so determined. To facilitate the clearance of goods on payment of duty calculated by the assessee on the basis of classification list (Rule 173B) and the price list (Rule 173C, the assessee, has to, maintain an account current with the Collector. This is referred to as the Personal Ledger Account (PLA). As and when removals of goods take place, after determination of the duty as detailed above, the quantum of duty determined has to be debited to the PLA. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Rule 173-I. 12. Ordinarily, in the scheme of the Act and the Rules, an assessment by a proper officer precedes the removal of manufactured goods from the place of manufacture - something expressly provided for under Rule 9. Can it be said that the provisions .of Chapter VII-A have modified that general directive under Rule 9? An assessment requires a determination of the quantum of duty due on an excisable product in accordance with the rates prescribed in the First Schedule to the Act. In the scheme of Self Assessment what has been done is to initiate the process of assessment by proper officer; approve the classification and price lists and leave it to the assessee to do the mechanical or clerical job of calculating the quantum of duty. It has been held that where an assessee does not agree with the classification approved by the proper officer, he has a right of appeal. A similar position applies in respect of valuation list approved by the proper officer. Hence approval of classification list and price list are formal decisions made under the Act and are crucial ones in the process of assessment of manufactured goods. When in accordance with the formal rates of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d classification list or a price list as provisional. Prior to 7-2-1981 both the Rules provided for two courses of action as open to an assessee who disagrees with a decision of the proper officer in respect of the rate of duty or valuation; payment of duty under protest or by having the goods assessed provisionally in terms of Rule 9B. The latter choice was omitted from that date thus indicating a deliberate action on the part of the Rule making authority that the decisions under Rules 173B and 173C are final and if the assessee so wished, he will have to resort to the procedures of payment of duty under protest or filling, a refund claim (or going in appeal against the decisions given under the Rules, if so desired). 15. In the above view of the matter, we consider that collection of duty under the Self Assessment Procedure, under Chapter VII-A is not by way of provisional assessment nor is the payment made provisional. 16. If One were to look at the provisions of Rule 173C(8), the above view would get further strengthened. Where an assessee disputes the price list approved by a proper officer, he is required to pay duty under protest on the basis of the price list approved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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