TMI Blog1988 (4) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... ess production cleared after 15.8.1978 was allowed irrespective of notional apportionment of such excess production into free sate and levy sugar components. This was calculated by the respondents as follows:- Period Quantity in Qtls. Basic Duty paid UPTO 15.8.1978 On free sale sugar 20,327 10,40,204.00 On levy sugar 10,080 1,13,690.30 AFTER 16.8.1978 1,788 44,208.30 Free Sale Sugar 13,84,608.56 Rebated levy sugar 30,990 delivered as free sugar ___________ ___________ TOTAL: 63,185 25,82,711.16 The rebate allowed by Superintendent Central Excise Letter (-) 15,88,486.08 C.No.20-Sugar/Rebate/77-78 dated 15.2.1978 9,94,225.08 3. On 2.4.1984, the respondents further revised this claimto Rs. 13,75,984.86. This revised claim rested on the grounds taken by the respondents that the above, cited order of Collector (Appeals) as regards the amount of duty refundable related to the entire duty leviable and paid under the Finance Act, including the basic, special and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 10.3.1983. 9. The additional claim, as per the department, being on all together different basis and as per entirely different mode of computation and for amounts not even provided under Notification No. 108/78, under which the claim was originally made in pursuance of Order-in-Appeal dated 10.3.1983 could have been made only within the time limits provided under Section 11 B of the Central Excises and Salt Act, 1944. In support of this view, the department cites the decision in the case of Miles India Limited v. Collector of Customs, Bombay (1983 ECR 2428-CEGAT), Commissioner of Income Tax, U.P. v. Parson Tools and Plants, Kanpur (Al R 1975 SC 1039) and Incheck Tyres Ltd.v. Assistant Collector of Customs Others (1979 ELT J236). 10. Shri Gopal Prasad, the learned Consultant, strongly supports the view taken in the Order-in-Appeal and, as will be seen in our discussion that follows, he gives various cogent arguments to show that there is no reason to interfere with the order of the Collector (Appeals). 11. The first point for decision is whether the additional rebate claim istime barred. On this, there are two submissions made by the respondents. Firstly, they have rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts had, on 28.4.1978, preferred a rebate claim for Rs.15,88,486.08 in pursuance of Notification No. 108/78, dated 28.4.1978. This was sanctioned and the amount was credited to the personal ledger account of the appellants on 15.12.1978. Thereafter, by a letter dated 17.6.1983, the appellants filed a claim for additional rebate of Rs.9,94,225.08. This amount was subsequently revised by the appellants by letter dated 2.4.1984, to Rs.13,75,984.86. It was submitted that this was in pursuance of the Order-in-Appeal No.72/CE/MRT/83, dated 10.3.1983. Now, this order had been passed on an appeal against Order-in-Original C.No. 268-CE/Qemand/81/3784, dated 23.3.1982. The Collector (Appeals) had interpreted the notification, following his Order-in-Appeal N0.63-CE/MRT/83, dated 28.2.1983 in the case of Mawana Sugar Works, to the effect that the rebate of duty on the entire excess production cleared after 15.8, 1978 (when sugar was de-controlled), irrespective of notional apportionment of excess production into levy and free sale components, should be limited to theamount of duty paid oh it. The Assistant Collector, by his Order No.V(1)/18(95) Rebate/76/6285, dated 25.5.1984, held, on reconsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to such person without his having to make any claim in that behatf, As we have seen, the additional claims did not arise out of the Order-in-Appeal dated 10.3.1983 and the Assistant Collector could not have considered these claims without reference to the provisions regarding limitation. The normal limitation, according to Section 11 B, is six months from the date of payment of duty, refund of which is claimed. This limitation i.s, however, saved in cases where excise duty is paid provisionally under the Act or the Rules made thereunder, when the date of adjustment of duty after the final assessment thereof will be the commencing point for computing the six months limitation period. 20. However, I observe that the Collector (Appeals) has not recorded any finding on the question whether the assessments, and payments of duty, were provisional as laid down in the Central Excise law. If the assessments were provisional, the two supplementary claims dated 17,6.1983 and 2.4.1984 will need to be examined, firstly, from the point of view of limitation as laid down in respect of claims arising consequent to finaiisation of provisional assessments and, secondly, if the claims are f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents by a ground taken up for the first time. As noted earlier, the supplementary claims proceeded on an entirely different footing from that in the original claim and were based on certain additional factors which had emerged as a result of the amending notification. The situation is not similar to the one in Shri Kedut SahakariKhand Udyog Mandii Ltd. case and the ratio of the decision in that case has no application to the present case. 23. The respondents have contended that the assessments were provisional. However, from the record, it does not appear that the assessments were provisional in the sense contemplated in the Central Excise Rules 9B. The respondents have submitted assessment Returns Form R.T. 12 for the months of June 1978, July 1978 and August 1978. Though the note regarding provisional assessment has not been struck out in the assessment memo,it is clear, having regard to the other notations that the assessments were not provisional. This Tribunal has consistently taken the view that there is nothing like provisional rebate or refund envisaged in Central Excise law. The rebate granted on the basis of the respondent s initial application, namely, Rs. 15,88, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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