9911796707
TMI Blog1986 (2) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... . Collector of Central Excise, Ahmedabad, Division III intimating him of the change in prices of the fibre and stating that since the products of the manufacturer were being supplied to the State Governments under rate contracts they were bound to pass on the reduction in the prices to the State Governments and therefore they would claim refund of duty paid in excess. Thereafter the appellants filed price lists 104/78 and 105/78 for Asbestos pipes and couplings respectively on 1-12-1978 and requested for their approval. The price lists were approved on 11-7-1979 but effective from 1-12-1978. In the meanwhile, the appellants paid duty on the higher prices mentioned for the two products in their respective general price lists 26/78 and 88/78 for the period 1-12-1978 to 30-12-1978. The learned advocate explained that though the price lists were approved with effect from 11-7-1979, the appellants did not pay duty on the basis of the old price list with effect from 31-12-1978 onwards. In reply to my question, the learned advocate stated that the appeal did not involve a question relating to the value of the goods for assessment of Central Excise duty. He added that there was no dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the decisions of the Collector and the Asst. Collector regarding rejection of the claims as time barred were not correct. In support of his contention, he relied on the following decisions:- (1) 1978 E.L.T. (J.III) Bharat Carpets Ltd. v. Union of India (2) 1978 E.L.T. (J.32) The Appellate Collector Central Excise, New Delhi in Re: Indian Traders (P) Ltd. (3) 1978 E.L.T. (J.643) Inchek Typres Ltd. v. Union of India and Others (4) 1981 E.L.T. 304 (G.O.I.) Govt. of India In re: M/s. Mahabir Oil & Flour Mills. The advocate also drew my attention to the other decisions relied upon in the appeal memo by the appellants. Accordingly, be submitted that the orders of the lower authority of rejection of the refund claims were not correct and that the appellant's request for refund should be granted and their appeal allowed. 4. Shri Pattekar, the learned Departmental Representative, contended in reply that the appellants had paid duty of Central Excise on Asbestos products classifiable under Item 23-C under the Central Excise Tariff. The duty was paid finally and not as deposit. Therefore, the time limit under Rule 11 was applicable. Shri Pattekar also pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities with reference to the powers of the Income Tax Appellate Tribunal will apply in the case of the powers of this Tribunal. It is seen that as per Section 35C(1) of the Central Excises & Salt Act, the Appellate Tribunal can pass any order as it thinks fit. This is a very wide power and in my view it would imply that the Tribunal should pass a correct and legal order and in coming to this conclusion it would be immaterial if any grounds are taken into account by the Tribunal which have not been agitated in the earlier proceedings. The only requirement would be that the parties to the appeal should be given an opportunity of being heard in the matter. It is for this purpose that Rule 10 of the CEGAT Procedure Rules has been framed for helping the Tribunal to come to a correct decision. Thus, the Tribunal may grant relief on a ground different from that urged before the lower authorities. There are a spate of authorities on the power of the Income Tax Appellate Tribunal and these would apply mutatis mutandis to the powers of this Tribunal. It was from this point of view that I put the question to the learned Departmental Representative as to whether the provisions of Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g) as rules prescribed under the Act. The scheme for collection of duty under the Rules enjoins on the assessee the filing of an application, namely AR 1 under rule 52, the assessment of duty thereon by the Central Excise Officer and thereafter payment of duty as laid down under this rule. Therefore, though the duty is leviable on the manufacture of goods under Section 3, the collection is postponed in terms of the prescribed Rules 9 and 49. Thus on presentation of AR 1 application, the proper officer of Central Excise is to assess the duty thereon and the assessee has to pay the amount of duty assessed to the Government before the assessee can remove the goods from factory under Rule 52. The goods have also to be removed from the factory under a Gate Pass issued in terms of Rule 52A. Thereafter, the assessee has to file a monthly return in the Form RT 12 under Rule 54 with the proper officer of Central Excise within seven days after the close of each month. 9. The above procedure was the scheme of the law upto 1969. In 1969 the Government brought in Chapter VII-A additionally in the Central Excise Rules and this was commonly known as "SELF REMOVAL PROCEDURE". Under Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance to be maintained by the assessee in his account current with the Collector so that there is no risk to revenue and also permit the assessee to remove consignments after making a consolidated debit in the current account at the end of each day, if he removed more than 3000 consignments in the previous calander year or if he manufactured one or more declared excisable goods irrespective of consignments removed by him in the previous calender year, and to cancel the gate pass if needed and to take credit of the duty in the current account of the amount debited earlier therein. Similarly, under Rule 173-1(2) the duty determined and paid under rule 173F is to be finally adjusted after assessment under sub-rule (1) and if there is difference in duty deposited earlier, the deficiency is to be paid or the excess is to be credited in the account current within 10 days of the receipt of the assessed RT 12 return from the Superintendent of Central Excise. These requirements of Rule 173-I are mandatory. Therefore, though the word provisional assessment is not mentioned under Chapter VIIA, the procedure prescribed thereunder is for provisional assessment only which has to be finalised su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cially inserted, under Chapter VII-A under which relaxation from the provisions of law have been provided for goods comprised in Item No.68 of the Central Excise tariff. Sub-rules (3) and (5) provide for the delayed submission of the RT-12 returns, and adjustment of duty in individual cases later if the duty cannot be determined at the time of removal of goods. This implies provisional assessment. In this behalf it is seen that there is no time limit for finalising the assessments under Rule 173-I and the RT-12 returns remain unassessed with the department for more than six months in a large number of cases. If, therefore, there is no provisional assessment under Chapter VIIA as seen above, the demands for recovery of extra duty and claims for refund of the excess duty would get barred by limitation under Sections 11A and 11B and the provisions of Rule 173-I of suo motu adjustment would become meaningless and non-operative in such cases. 11. Therefore, applying the provisions of law as interpreted above to the appellant's case under consideration, it is seen that the RT 12 return for the month of December 1978 was assessed finally on 12-10-1979. While doing so, it is signific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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