9911796707
TMI Blog1985 (1) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... duty was on ad valorem basis. The appellants wrote a Letter dated 1-3-1970 addressed to the Superintendent, Central Excise, MOR III stating as under : "Kindly approve the following wholesale prices of our aerated water as shown below :- Coca-Cola 7/- per crate. Rs. Soda 2/- per crate. Rs. Fanta 7/- per crate." Rs. The Superintendent made the following endorsement dated 5-3-1970 on the body of the said letter from the appellants. "provisionally approved subject to verification." At the same time, the appellants were orally asked to give to the Superintendent information on the price structure as it prevailed prior to the levy of duty on aerated waters. Vide their Letter dated 2-3-1970, addressed to the Superintendent, the appellants furnished their price structure as it was previous to the levy and as it was modified after the levy of excise duty. Shri Bedi laid stress on the fact that in this letter the appellants had given a clear indication that the price was inclusive of excise duty and distribution charges. In another Letter dated 6-3-1970, written in continuation to their earlier Letter dated 2-3-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile price-list under Rule 173-C. Shri Bedi invited our attention to the price-list dated 17-3-1970, effective from 1-3-1970, filed by them in respect of their products Coca-Cola, Fanta Orange and Soda Special. The Superintendent, Central Excise, made the following remark with regard to the column "ex-factory wholesale price exclusive of duty." "The following rates are approved with effect from 1-3-1970 as assessable value pending verification of invoices." Shri Bedi submitted that till-date, the appellants had not received any reply to their representation dated 21-5-1970 addressed to the Assistant Collector and that they were awaiting the result of their representation. Shri Bedi emphasized that it was open to an assessee/appellant to send further reminders of not. Once a representation had been made, it was incumbent on the Department to dispose of the representation one way or the other. So long as no justification was given for a particular decision, the appellants were entitled to presume that the subject matter of the representation was still under consideration and that the fact that further reminders were not sent by the appellants could not be deemed to be held against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 24-3-1977. The Appellate Collector did not agree with the contention raised before him by the appellants that their Letters dated 7-3-1970 and 10-3-1970 addressed to the Superintendent amounted to protest in the absence of a final decision on their representation dated 21-5-1970 and that the Assistant Collector was wrong in rejecting the appellants' claims as barred by limitation. Following this line of reasoning, the Appellate Collector further held that in the absence of a protest, the appellants could not take shelter of a period of three years with reference to the date of discovery of a mistake of law in the light of the Supreme Court's judgment in the Voltas Ltd. case. On merits also, the Appellate Collector rejected the appellants' case. However, the Appellate Collector took a somewhat different view from the Assistant Collector's view in rejecting the appellants' claim on merits. He held that the invoices issued during the relevant period did not show separately the transport expenses or other charges which were being claimed as deductions from the price. The Appellate Collector observed that it was for the first time that the appellants had raised the question of deducti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excises & Salt Act, 1944 (hereinafter to be referred to as Act), as it stood at the relevant time. After examining the matter, the Government of India vide Order-in-Review No. 360 of 1980, dated 31-3-1980 upheld the finding of the Appellate Collector that the claim was not barred by limitation. To complete the sequence of events, Shri Bedi pointed out that there were two remaining refund claims filed by the appellants, namely, for the periods 1-7-1974 to 16-9-1974 and 17-9-1974 to 25-9-1974. Both these claims have not yet been finalised by the lower authorities. Shri Bedi submitted that right from 1-3-70, the date on which duty was imposed on aerated waters, the appellants had specifically brought it to the notice of the lower authorities that distribution charges of 30 paise and 70 paise per crate for Delhi and out-stations, respectively, were entitled for exclusion from the selling price. They had taken this stand even before the judgment in the Voltas case was pronounced. Further, the appellants had made it clear that distribution charges could not be treated as a part of the assessable value and that they were paying duty under protest. The lower authorities on their part, had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclusion of distribution charges as these were nothing but equalised or averaged freight. He prayed that the appeals should be remanded to the Collector (Appeals) for a discussion on merits in accordance with the law as laid down by the Supreme Court. 5. Shri A.K. Jain, the learned SDR refuted the various contentions of Shri Bedi. With regard to the limitation, the thrust of his argument was that Rule 11 was relevant to the appellants' case. It was not the appellants' case however, that duty was paid by them either through inadvertence or error. As this was not a case of inadvertence or error, the refund claims made by the appellants were hit by limitation set out under Rule 11. Referring to the submission made by Shri Bedi that it was a case of mis-construction of law, Shri Jain submitted that a misconstruction of law is different from a mistake of law. In this connection, he referred to M/s. Dalmia Dairy Industries Ltd. case (Appeal No. 374/81-C - Order No. 250/84-C) where a distinction between the two legal concepts has been made. Shri Jain also invited our attention to the judgment dated 8-1-1970 of the High Court of Mysore at Bangalore in Writ Petitions No. 1730/67 (M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representation to the Assistant Collector, as advised in the Superintendent's "appealable order". Therefore, according to the appellants, all their claims were within time and entitled to be disposed of on merits and in accordance with law, taking into account the latest pronouncements of the Supreme Court. 7. As regards the appellants' argument that payment of duty had been under protest, we have taken note of earlier decisions of the Tribunal where also it was held that payment was under protest and it was held that the respective claims were not barred by limitation. One such decision was that in Appeal No. ED(SB)(T)514/82-A, decided on 9-8-1983 (Collector of Central Excise v. M/s. Chennai Bottling Co. Ltd., Madras) [1985 (19) E.L.T. 129]. Briefly, the facts of the case were that the appellants had, while paying the duty, simultaneously written letters to the lower authorities in which they had stated that they were not satisfied with the classification adopted by the lower authorities. While disposing of the appeal, the Bench had held that contents of the letter (written on the lines in the present appeals) were clearly in the nature of a protest and, therefore, the bar o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen no decision was passed by the Assistant Collector on their Letter of 21-5-1970. On the other hand, there is force in the contention of Shri Bedi that the lower authorities should have disposed of, one way or the other, the merits of their submissions made in the said letter. 8. What however appears to us to be the strongest argument in the appellants' favour on the question of protest is the one arising from the proposal of the Central Government to review the Order dated 17-1-1978 of the Appellate Collector in another case of the appellants. According to Shri Bedi the issue before the Central Government in that case was identical to the one which is before us for decision. After careful consideration of the appellants' submissions, the Central Government in their Order dated 31-3-1980 had accepted the contention of the appellants that their Letter dated 21-5-1970 was clearly a letter of protest. In view of this position, the Central Government had dropped the review proceedings and restored the order of the Appellate Collector. Shri Bedi submitted that while orders of the Central Government are not binding on this forum, nevertheless, their legal and persuasive value had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e how the same is applicable to the facts of the present case. From the judgment of the court, it does not appear that the issue of a protest was involved in that case. 10. We have disposed of the question of limitation. As regards the merits of the appeals, the appellants contended before the lower authorities and before us that the charge of 30 paise per crate (for local deliveries) and 70 paise per crate (for out-station deliveries) was in the nature of 'equalised freight'. Shri Bedi stressed that this charge had been held as being in the nature of equalised freight by the lower authorities. In view of the law as was being interpreted by the lower authorities at the relevant time, the appellants were denied the deduction of equalised freight as being inadmissible. He submitted that the position had now been clarified by the pronouncement of the Supreme Court in its judgment 1983 E.L.T. 1896 (S.C.) and that the deductions of 30 paise/70 paise per crate are in the nature of equalised freight and have to be excluded from the assessable value. As already observed, we had heard these appeals basically with reference to the question of limitation, since there was no decision on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred on 16-12-1974. The claims at A to E and H to L were rejected in adjudication as well as in Appeal and are the subject matter, of the instant Revision Applications, heard as Appeals. The claim at 'G' was allowed by the Appellate Collector and refund also obtained. The claim at 'F' is now pending disposal before the Appellate Collector. 13. At the relevant time, it was provided, (insofar material), inter alia, (a) in terms of Rule 173-C of the Rules, that - (i) price lists were to be submitted where goods were to be assessed to duty ad valorem, showing merely the price of the goods and the trade discount, if any, (ii) the proper officer was to approve the price lists subject to such modifications as he may consider necessary, so as to correctly determine the assessable value thereof in terms of Section 4 of the Central Excises and Salt Act, 1944 (hereinafter, the Act); (iii) if in the list approved, an amendment became necessary, for any reason, fresh price lists or amended price lists were to be filed for the approval of such officer; (b) in terms of Section 35 of the Act, that an appeal against any decision or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held that - "There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and, therefore, an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute". The Tribunal as well had held it so in 1983 ECR 1750 [Atma Steels Ltd. v. Collector of C.E.] and 1984 (16) E.L.T. 445 (Tribunal) = 1984 ECR 1370 [Collector of C.E. v. M/s. Crescent Dyes and Chemicals]. (iii) The statute that confers the right of appeal invariably prescribes the forum for the appeal as well, for, obviously unless the forum is prescribed, the right of appeal conferred cannot be exercised and remains inchoate. A right of appeal without a forum for exercising it is of no avail. (iv) When once the forum for exercising the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for a period of three months for an application of refund from the date of payment or adjustment of the duty, as the case may be. There is no saving from the commencement or the efflux of the aforesaid period of three months in case the payment was made under protest. A provision of saving in case of protest was engrafted in the Rule by amendment only on 6-8-1977 and cannot apply to applications of refund filed before the said date. The discussion relating to payment under protest is, therefore, altogether irrelevant. In the premises, even if there is a case for refund and a right to claim it had accrued to the Appellant, it cannot extend to payments made beyond three months prior to 16-12-1974, the date of the refund applications i.e., 16-9-1974. (f) In the premises, the Appeals, in my respectful opinion, fail since no right to claim refunds had accrued to the Appellant, and have to be dismissed. New Delhi 24th January, 1985. Sd./- (M. Gouri Shankar Murthy) Member (Judicial) In accordance with the view of the majority, these appeals are disposed of in terms of the-directions in Para 10 of the majority order. Sd./- (M. Gouri Shankar Murthy) Me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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