TMI Blog1991 (1) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... dye-stuffs manufactured by the appellants had to be determined on the basis of resale price of the said wholesalers, I.C.I. Private Limited and Atul Products Limited in respect of the price at which the said dye-stuffs were sold by the appellants to the said wholesalers. Between 22-5-1961 to 30-6-1965, price lists under protest were submitted by the appellants on the basis of the resale prices realized by the said wholesalers, as per the directions of the Excise authorities. The said price lists were approved by the Excise authorities on a provisional basis and B-13 Bonds with bank guarantees were finished by the appellants in connection therewith. Further, all payments of Excise duty were also made by the appellants under protest. At the same time, the appellants challenged the view taken by the Excise authorities and carried the matter higher in revision, and submitted that the assessable value of the said dye-stuffs should be determined only on the basis of the price charged by the appellants to the said wholesalers, and not the resale price recovered by the wholesalers themselves. However, the appellants contentions and submissions were negatived by the adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payments of the refund amount were made by the Excise Department to the appellants during the period August to October 1975. On 29-10-1975, the appellants wrote to the Excise Department recording that they had received refund cheques for an aggregate amount of Rs. 2,07,34,134.29 as a consequence of the said settlement arrived at between the parties. The appellants stated that it was honouring its part of the settlement and had instructed its lawyer to withdraw the said Civil Suits 11/71 12/74 pending in the Navsari Court. The Collector was requested to ask the Government Pleader at Baroda to contact the appellants lawyer for submission of a joint Memorandum to the Court to enable the suits to be withdrawn following this amicable settlement outside the Court. On 16-1-1976, purshish was filed in the Civil Court, by which the said two suits were withdrawn. 4. Between 26-8-1976 to 25-9-1976, six show cause notices were issued to the appellants, calling upon the appellants to show cause why the excess amounts of refund paid to the appellants should not be recovered from them. Order in Revision of the Government of India following the Supreme Court Judgment dated 14-2-1975 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e wholesale dealer who purchases the goods from the manufacturer and in his turn sells the same in wholesale to other dealer would be irrelevant to the determination of the value and the goods would not be chargeable to excise on that basis. The conclusion, is therefore, inescapable that the assessable value of the dye stuffs manufactured by the appellants must be taken to be the price at which they were sold by the appellants to ICI and Atul less 18% trade discount, and not the price charged by ICI and Atul to their dealers. 15. We, therefore, allow the appeal, reverse the judgment of the High Court and quash and set aside the assessments to excise duty made by the Excise Authorities on the dye stuffs manufactured by the appellants. We direct the respondents to refund to the appellants forthwith the amount collected in excess of the correct duty of excise leviable in accordance with the principle laid down in this judgment. The respondents will pay to the appellants costs in this Court as well as in the High Court." Subsequent to this, the refunds were granted over a period of three months i.e. between August and October 1975. The Asstt. Collector then sought to recover duty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of formal refund claims. 9. This issue has been settled in favour of the appellants by this Tribunal in the case of M/s. Pure Drinks (New Delhi) Ltd. v. CCE New Delhi - 1987 (31) E.L.T. 138 (Tri.) = (1985 ECR 696) wherein a protest by letter was held to be a valid protest. It was held therein that once a protest is made within the limitation period then the claims flowing qua that protest must be deemed alive till they are disposed of through adjudication proceedings. The Tribunal took note of its earlier orders on the issue of payment under protest in the cases of CCE v. M/s. Chennai Bottling Co. Ltd. -1985 (19) E.L.T. 129 (Tri.) [Appeal No. ED (SB) (T) 514/82-A decided on 9-8-1983] and Indian Tool Manufacturers, Bombay v. CCE [1984 (18) E.L.T. 622 (Tri.) = 1984 ECR 2064]. In the case of India Cements Ltd. v. CCE [1989 (41) E.L.T. 358 (SC) = 1989 (25) ECR 477], the Hon ble Supreme Court held that a letter disputing duty is adequate protest therefore limitation under Rule 11 would not be applicable - the refund claim had been rejected on the ground that Rule 11 was applicable as duty was not paid under protest the claim was barred by time 10. In the light of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
