TMI Blog1989 (9) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted a written brief. The same is taken on record. 7. It was appellant s submission that the entire claim was not time barred as the time limit is six months from the date of payment of duty and not from the date of adjustment of the amount in PLA. This will be apparent when the language of Section 11B is compared with the old Rule 11 and it is noted that reference to the account current has been dropped in Section 11B. It was also their contention that debit in PLA is in the nature of deposit whereas the assessment is made on RT-12. Hence the date of assessment thereon is relevant. They relied on the G.O.I, order reported in 1977(1) E.L.T. J-127 and stated that if the debit to the PLA is treated as payment of duty then 1731 would become redundant. He would also like to rely on the orders of the Tribunal Assistant Collector v. National Tobacco Co. of India Ltd. reported in E.L.T. July 1978(2) Page-J416 and May 1981 Page-304, and In re : Pesticides India. - E.L.T. August 1981 Page-507 In re: Mahabir Oil Flour Mills in support of their contention that an amount collected illegally in excess of the amount due was not time barred as per various High Court judgments. 8. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Corporation Ltd. v. Collector of Central Excise, Coimbatore [1986 (26) E.L.T. 756 Tribunal, Madras]. 14. In response to questions from the Bench, the learned DRs stated that although the classification list and price list are approved by the Assistant Collector and the rate of duty is also approved by the Assistant Collector it is the Superintendent, who is the proper officer for assessment purposes in terms of Rule 1731 and it is he who completes the RT-12. However, that is not material or relevant for the purpose of the present case inasmuch as under Rule 173 it is the assessee who is required to determine his own liability of duty and to remove the goods only after payment of the duty so determined, by himself by way of making a debit in the PLA. Therefore, the only date which is relevant is the date of making payment in the PLA. 15. In response to a further question from the Bench the learned DR stated that in this particular case the refund application was received on 7-1-1984 i.e. before the approval of the classification list by the Assistant Collector or the completion of RT 12 by the Superintendent. 16. However, he would reiterate that these dates are not relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rule 173F referred to by the learned SDR all that the assessee is authorised is to determine only his duty liability for duty and to remove the goods thereafter on payment of the sum so determined. This does not mean that the assessee has been authorised to indulge in self-assessment or the amount paid, deposited or adjusted by him suo motu is duty , for duty can be assessed only by the proper officer and by none else. 24. For convenience of reference. Rule 173F is reproduced below :- Assessee to determine the duty due on the goods and to remove them on payment thereof. - Where the assessee has complied with the provisions of Rules 173B, 173D and where applicable, 173C, [or 173CC] he shall himself determine his liability for the duty due on the excisable goods intended to be removed and shall not, except as otherwise expressly provided in these rules, remove such goods unless he has paid the duty so determined. 25. It is noteworthy that this rule talks of determination and not assessment and further emphasises that he shall himself determine his liability for duty . The use of the words liability for duty is significant and the words determine the duty used in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department only. Therefore, the department cannot get away from the fact that it is the Assistant Collector and the Superintendent who have been vested with the powers of the proper officer with reference to the different stages involved in the assessment and unless all these stages are completed the matter cannot be a treated as final; Obviously, the time limit cannot start running unless all these stages of assessment have been duly and properly completed as per law, except where a specific provision to the contrary has been made. In this connection, the contrast between Section 11A and Section 11B is glaring inasmuch as an exception has been made on the demand side in allowing the date of filing the return to be considered as the relevant date for calculation of the time limit. But, (significantly) no such provision has been made on the refund side. Therefore, in the absence of any corresponding provision the procedure followed for the Section 11A (demand) cannot be followed for the purpose of 11B (refunds) and the learned SDR s pleadings on this count must fail. 31. In this connection, I may also take opportunity to mention that Section 27 of the Customs Act and the Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and if while doing so he found that the amount deposited by the assessee was more than the amount due in terms of the Assistant Collector s order it was the duty of the Superintendent to order crediting of the said amount in terms of 1731; And this could be done straightaway (without there being any need for refund application) in terms of the powers vested in the proper officer under Section 1731. 39. Even otherwise, the refund having become due to the assessee in terms of Assistant Collector s order of exemption, is in the nature of consequential refund which could be allowed by way of adjustment or otherwise, even if the appellant had not applied for the same. 40. Therefore, whichever way we may look at the matter, the order of the authorities below in rejecting the appellant s prayer was neither correct nor proper. 41. We, therefore, set aside the order and accept the Appeal. The matter is remanded to the Assistant Collector for consideration on merits in the light of above observations and findings and allow the refund due. 42. [Assent per : T.P. Nambiar, Member (J) ]. - I have gone through the orders passed by my learned Brother. I entirely agree with the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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