TMI Blog1990 (12) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be clearing goods after paying the duty under protest from 17th January, 1980 to 3rd May, 1980. Relying on the judgment dated 15th November, 1971 of the Bombay High Court [reported in 1982 (10) E.L.T. page 358] the appellants filed a refund claim for Rs. 64,539/- on 27th October, 1980. The Asstt. Collector rejected the same by his order dated 7th February, 1981. On appeal the Collector confirmed the order of the Asstt. Collector, hence, the appeal before us. 3. The main contention of Shri Ravinder Narain is that the equalised freight is excludable from the assessable value in view of the judgment of the Supreme Court in Bombay Tyre International reported in 1983 (14) E.L.T. page 1896. 4. Shri Ganu appearing for the department relying on the judgment of the Supreme Court in Madhumilan Syntex [1988 (35) E.L.T. page 349 (SC)] submitted that the appellants have not filed any appeal against the order of the Assistant Collector approving the price list by adding the equalised freight to the assessable value. As long as the price list is in force adding equalised freight to the assessable value, the question of refund does not arise. He also relied on the order of this Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved classification list. 6. The question, therefore, is whether the appellants are entitled for the refund of duty paid without seeking the revision or modification of the price list under which the duty was paid. 7. The facts which are not in dispute are - that the price list was filed on 18th September, 1979 was approved by adding the equalised freight and no appeal was filed against the said approval. The equalised freight is not includable in the assessable value of the goods manufactured in view of the judgment of the Supreme Court in Bombay Tyre International (supra). The appellants Filed the refund claim which was rejected by the department. 8. The question whether the assessee was entitled to claim refund of the duty without claiming the relevant deductions in the price list came up for consideration before this Tribunal in Modi Rayon Silk Mills (supra). There was a difference of opinion between Shri P. C. Jain, Member (Technical) and Shri G. S. Murthy, Member (Judicial). Shri Jain was of the view that the refund application was maintainable without revising the price list whereas Shri G. S. Murthi was of the view that the appellants were making a new case, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws :- Under the scheme of the Central Excises and Salt Act, Section 11A was provided as a substantive provision and a complete code for realisation of excise duty in case of short-levy or short-payment and Section 11B of the said Act also provided the substantive and the machinery provision for refund of any excess duty paid which is also a complete code for the same. The twin sections - Sections 11A and 11B - were introduced in the interest of the revenue as well as the assessee and that is why the legislature had not laid down any condition precedent and/or restriction in the matter of exercise of its powers under Section 11A or 11B of the said Act. The decision by the Tribunal, referred to by the petitioners, reported in 1987 (29) E.L.T. 933 had not correctly interpreted the provision of Section 11B. If the Interpretation given by the Tribunal is accepted, that would result in a disastrous effect and that would make the provision of Section 11B(1) completely nugatory and unworkable, and the provision of Section 11A would also be made completely nugatory and unworkable. The Tribunal s decision is wholly erroneous and contrary to the scope and object of the Act and cannot be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Collector had modified the approval of the classification list on 9th February, 1984 and calling upon the petitioner to show why the duty short-levied should not be recovered under Section 11A of the Act. A second similar show cause notice was issued. The petitioner requested for stay of the proceedings in view of the writ petition pending in the High Court which was turned down, and on 5th March, 1984 orders were passed by the Assistant Collector. Thereafter the petitioners amended the writ petition challenging show cause notice and the adjudication order dated 5th March, 1984. The petitioners also filed an appeal before the Collector against the order of the Assistant Collector dated 5th March, 1984. The M. P. High Court allowed the writ petition and the demand for the period from 15th August, 1983 to 6th February, 1984 was set aside. The M. P. High Court directed the Collector to consider the show cause notice for the subsequent period as the show cause notice is valid for the subsequent period namely, 9th February, 1984, against which the U.O.I, filed a special leave petition. 13. The contention of U.O.I, and the respondents for the purpose of the present case is that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the provisions of the said Act or rules, made by the person concerned, as contemplated in the proviso to sub-section (1) of Section 11A. No such case has been sought to be made here in the said show cause notice. The result is that the said show cause notice must be sturck down in so far as period upto 6th February, 1984 is concerned, and can be regarded as a proper show cause notice only in respect of the subsequent period from 7th February, 1984 onwards (emphasis supplied). We are, therefore, of the view that under the said show cause notice the question of short-levy or non-levy of excise duty prior to 6th February, 1984 cannot be gone into by the Collector and the High Court was right in the view which it took. 16. In other words the Supreme Court held that the show cause notice dated 9th February, 1984 cannot be regarded as a show cause notice for the modification of classification list. Consequently the demand for the period prior to the said show cause notice was set aside, impliedly it means without modifying the classification list no demand can be enforced. 17. Shri Ravinder Narain disputed that the judgment of the Supreme Court (supra) impliedly or expressly laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to the said order. We have held following the judgment of Madhumilan Syntex that without modifying the price list the demand cannot be enforced. However, we may point out that the later judgment of the Supreme Court in Elson was not brought to our notice. The said order was, therefore, passed without considering the later judgment of the Supreme Court. 22. We have also considered whether it is necessary to refer the matter to a larger bench as we are taking a contrary view to the one already expressed in Maheshwari Mills (supra). We thought that it is not necessary to refer it to the larger bench as we are following the later judgment of the Supreme Court and the order in Maheshwari was passed without refering to the judgment in Elson. If the judgment of the Supreme Court in Elson was brought to our notice we would not have taken the view expressed in Maheshwari Mills. In this context we may place reliance on the following observations of the Allahabad High Court in UOI v. Brijnath Rai others [AIR 1971 page 209]. Learned counsel for the respondents has contended that as I am differing from the view taken by me in Sawan Mal s case, 1970 All LJ 938 (supra) I should refer th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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