TMI Blog1989 (3) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... supplementary appeal arose in view of the practice of the Tribunal, Smt. V. Zutshi, the Departmental Representative, did not oppose the condonation of the delay. Since there was justification for the said delay, we condoned the delay and took up both the appeals together for hearing since they involved a common issue. Shri Daya Sagar, Conslt. represented the appellants and Smt. V. Zutshi, Departmental Representative, the respondent-Collector. 2. The facts of the case, briefly stated, are that the appellants had filed on 30-7-1975 two claims for refund of Rs. 80,340.34 and Rs. 3,381.48 which, according to them, had been paid in excess of the auxiliary duty of excise leviable on stems and dark .brown tobacco. The payments were made during the period from 1-3-1974 to 29-7-1974. According to the appellants, the auxiliary duty was leviable at 20% ad valorem and not at 10% of the basic excise duty, that is to say, the rate of duty specified in the First Schedule to the Act read with any notification issued by the Central Govt. under Rule 8(1) of the Central Excise Rules, 1944 (these Rules are hereinafter referred to as the Rules ). The Assistant Collector of Central Excise rejected t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not been approved. In the Memo. of Revision Application (the transferred appeal), it is stated that the price lists still remained unapproved. It was urged that the assessments should, therefore, be deemed as provisional and that the payments having been made involuntarily, the limitation under Rule 11 was not applicable in the instant case since the excess amount of duty had not been paid through error. 5. Shri Daya Sagar, Learned Counsel for the appellants, drew our attention to the appellants letter dated 19-4-1974 to the Asst. Collector, Central Excise, Baroda. For a proper appreciation of the effect of this letter it should be read as a whole and is, therefore, reproduced below: UII/1556 19-4-1974 Asst. Collector, Central Excise, Baroda Thru The Superintendent Central Excises, Baroda Dear Sir, Price list for unmanufactured tobacco under Tariff Item 41(1) 41(4) submission regarding We have few grades of VFC unmanufactured tobacco having the value less than Rs. 2.20 per kg. Referring to the last budget declared on 28th February 1974, we are entitled to clear these grades of tobacco for auxiliary duty at the ad valorem rate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Rules and that claims for refund of duty made in terms of the said Act and Rules were goverened by the limitation laid down therein, was not applicable to the present case, Shri Daya Sagar submitted that it was not. 7. In reply, Smt. Zutshi, for the Department, submitted that the Supreme Court judgment in the Doaba Cooperative Sugar Mills case 1988 (37) E.L.T. 478 (Tribunal) (supra) would squarely apply to the facts of the present case. She also relied on the Tribunal s decision in Curti Chemicals Pvt. Ltd. v. C.C.E., Bombay -1984 (18) E.L.T. 484. The letter dated 19-4-1974 did not, in her submission, amount to payment of duty under protest, though she fairly stated that the impugned order-in-appeal did not deal with the appellants submission with reference to the said letter. 8. On being questioned by the Bench as to how the appellants letter dated 19-4-1974 could have any application in respect of the payments made prior to that date, Shri Daya Sagar fairly stated that it might not have any application. 9. We have carefully considered the submissions of both sides and perused the record. 10. The only issue for determination in these appeals is whether the two cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired data on 23-5-1978. The period during which excess duty was paid was from 9-1-1979 to 31-3-1979. According to the instructions of the Department the assessee could not have cleared the goods at the concessional rate without the Asst. Collector having fixed the base period and base clearances which he did on 29-12-1979. The assessee thereafter filed on 12-2-1980 a claim for refund of the excess duty paid. The excess payments had not been made under protest. The Tribunal held that when the assessee had applied to the Asst. Collector with the declaration of base period and base clearance data, they had clearly staked their claim for the exemption under the notification. The claim dated 12-2-1980 which quantified the amount claimed was only a continuation of the initial claim and the Department s contention that this claim was barred by limitation was not upheld. The Tribunal held that since the appellants had staked their claim well in time, it was not necessary for them to pay duty under protest. In the present instance, the appellants had staked their claim on 19-4-1974 and the formal claims filed on 30-7-1975 could only be regarded as in continuation of the initial claim. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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