TMI Blog1990 (5) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... 985 involving two refund claims for an amount of Rs. 1,57,500.01 and Rs.37,137.22. 2. E/1507/86-B1 : Against order-in-appeal No. 552-C.E./KNP/85 dated 20-12-1985. The order of the Collector (Appeals) is with reference to the order-in-original C.No. C.E./Int/T.I./31(2)/80 dated 11-5-1984 involving entitlement of the benefit of exemption under Notification No. 80/80 dated 18-6-1980. 3. E/1508/86-B.1 : Against the order-in-appeal Nos. 549, 550 and 551-C.E./KNP/85 dated 20-12-1985. The order of the Collector (Appeals) is with reference to the order-in-original Nos. 41-42.ACK-II/85 dated 31-5-1985 which involves refund of two amounts - Rs. 1,36,777.35 and Rs. 8,321.75. 4. E/1509/86-B.1 : Against the order-in-appeal Nos. 549, 550 and 551-C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00.01 and Rs. 37,132.22 were rejected by the Assistant Collector vide his order dated 31-5-1985, as being inadmissible as in the preceding year in 1980-81, the value of their clearances had exceeded Rs. 15 lakhs (Rs. 14,67,000/- + Rs. 58,209.65) due to inclusion of the refund amount. The order was upheld by the Collector (Appeals). Similarly, in respect of the appeals in E/1508/86-B.1 and E/1509/86-B.1, the issue being common, the appellants have pleaded for refund of the duty amounts as they have paid duty under protest pending approval of the classification list and that rejection of their claim for refund as being time barred under Section 11-B is not correct and also that their clearances were less than Rs. 15 lakhs and claimed exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1, he referred to the letter written by the Assistant Collector dated 3-6-1980 wherein the Assistant Collector had directed that clearances should be effected on payment of duty and the appellant s action of clearing the goods on nil rate of duty under Notification 71/78 without getting the classification list approved was not allowed. He pointed out that as per the provisions of Rule 173-B (2A), it was for the department to have allowed the appellant to avail the procedure under Rule 9-B for provisional assessment of the goods, but on the other hand, the Assistant Collector had directed him to pay duty, which he did under protest. He cited the decision of the Tribunal in 1985 (21) E.L.T. 223 in the case of Indian Oil Corporation Ltd., C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions are provided and the appellants are required to abide by these provisions. He referred to the following case laws in support of his submissions : 1. 1987 (30) E.L.T. 641 (S.C.) - Miles India Ltd. v. Assistant Collector of Customs. Refund claim - Limitation - Appellate Tribunal as well as Customs Authorities bound by statutory period of limitation - Appeal dismissed as withdrawn - Recourse to alternative remedy if available, advisable - Section 27 (1) of Customs Act, 1962". 2. 1988 (37) E.L.T. 478 (S.C.) - Doaba Co-operative Sugar Mills - for applicability of time limit under Sections 11-A and 11-B of the Central Excises Salt Act, 1944. On the issue of redetermination of the value by inclusion of the refund, the learned SD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11-B of the Central Excises Salt Act and under such circumstances, when classification is pending approval, the right course for them is to have resorted to provisional assessment under Rule 173-B (2A). The provision under Rule 173-B (2A) reads as follows:- 173-B (2A): All clearances shall, subject to the provisions of Rule 173-CC, be made only after the approval of the list by the proper officer. If the proper officer is of the opinion that on account of any inquiry to be made in the matter or for any other reason to be recorded in writing there is likely to be delay in according the approval, he shall, either on a written request made by the assessee or on his own accord, allow such assessee to avail himself of the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 dated 28-7-1989. To quote the relevant portion : The issue that now remains to be seen is the redetermination of value by including refund amount. It is seen that earlier decisions are available as in the case of Karnataka High Court for the purpose of explaining the scope of Section 4(4)(d)(ii) and the Collector (Appeals) order on this aspect is also clear. As the amount of duty has already been collected from the customers, that duty is not to be excluded from the assessable value and the Assistant Collector s order is correct. From a reading of Section 4(4)(d)(ii), which reads as under :- does not include the amount of the duty of excise, sales-tax and other taxes, if any, payable on such goods and, subject to such rules as may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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