TMI Blog1995 (4) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the provisions of Section 11B of Central Excises Salt Act. He had also held that notwithstanding the said time bar provision, they were not eligible for refund as they had not applied for exemption under Notification 83/83 in their classification list. The Collector (Appeals) accepted their contention that unless the financial year closes, it is not possible to know whether they would or would not cross the total value limit of Rs. 25 lakhs. He then proceeded to observe that the question that arose was how the relevant date has to be taken. He noted that Government of India s order in Revision reported in 1980 Cen-Cus 1091 gave the guidline in such cases and the proper course would be to resort to provisional assessment during the financial year and then go by the relevant date. While remarking that in this case no formal order had been passed for provisional assessment, he held that this should be taken, in effect, as a case of provisional assessment as held in the said decision of the Government of India. Accordingly he held that the claim for refund should be taken as filed in time and ordered that the refund claim be sanctioned if otherwise due, admissible and in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st April, the close of the financial year. The assessment for the year being considered as provisional until the close of the relevant financial year. These are thus two question decided by the Government in this case - 1. The assessment is provisional till the year is over. 2. The point of computation of time gets shifted to 1st April. We are not inclined to accept the former proposition which was followed by the Collector (Appeals) in his order. Provisional assessment is provided for in terms of Rule 9B of the Central Excise Rules. These conditions characterise provisional assessment. The normal procedure of clearance of goods on payment of duty without any case having been made out for provisional assessment and without an order passed by the proper officer for provisional assessment and without a bond executed by the assessee does not confer the status of provisional assessment on the assessment followed only because subsequently a refund claim is filed on the strength of an exemption notification which is linked to the value of clearances in the financial year. We, therefore, accept the plea raised in the appeal that the Collector (Appeals) fell in error in treating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers - 1995 (6) RLT 769. By a two to one majority refund claim filed on 27-4-1978 which was beyond a period of six months from the date of payment of duty but within that period from the close of the financial year was held to be within time. The department s appeal was dismissed. Relevant date for computation of time limit for such refund claims will be the date of payment of duty are as follows :- 1. 1983 (14) E.L.T. 2156 Kerala High Court - Asstt. Collector v. T.T. Pylunny. 2. 1991 (51) E.L.T. 532 Tribunal - Asian Bearing Ltd. v. Collector of Central Excise. 3. 1989 (41) E.L.T. 377 Bombay High Court - BTX Chemicals v. Collector of Central Excise. In the first case, the Honourable Kerala High Court had observed as follows :- There can be little doubt that the Rules which we have quoted place the period of a limitation of an application for refund in this case at a period of one year. The same is to start from the date of payment or adjustment of duty. Being a Rule or a provision providing for limitation in respect of claims for refund, considerations of hardship seem to be out of place although, if it is possible to give the rule a construction which would avoid hard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 16-1-1979. It was not available before the Andhra Pradesh High Court as the Auric Engineering Pvt. Ltd. case had been decided by them on 17-3-1978. It was also not brought to the notice of the Honourable Bombay High Court when they decided the Weikfield Products case on 10-9-1990. The BTX Chemicals judgment of the Honourable Bombay High Court needs a close examination at this stage. This was taken note of by the Tribunal in the Tin Can Manufacturers case referred to earlier. Though in the said judgment which related to Notification 89/79 it was held that the period of limitation would begin from the date of payment of duty rejecting the contention of the learned counsel for the petitioners that the application for refund having been made within a period of six months from the end of the financial year ending 30th March, 1980 was within the period of limitation, the preceding observation in the said judgment concurring with the first Pylunny judgment of the Kerala High Court which had been reversed on appeal by the Divisional Bench of that Court. It was observed that the exemption notification involved was distinct from the one considered in the Pylunny case. That judgment was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in respect of goods within the limit of Rs. 15,00,000/-, the period of limitation would begin from the date of the payment of the duty. This part of the contention of Shri Shah is, therefore, liable to be negatived." It will be seen from the above extract that while on the one hand the finding was against the petitioners that the period of limitation would begin from the date of payment of duty where duty was paid at the time of clearance in respect of goods within the limit of Rs. 15 lakhs. While coming to this conclusion the Pylunny case of Kerala High Court was distinguished and not followed. It was not held to be incorrect. The fact that the said judgment had been reversed on appeal by the Divisional Bench of the Kerala High Court was not also highlighted before the court. But from the reasoning in the judgment supporting the first Pylunny judgment of the Kerala High Court indicates that his Lordship was of the view that where the Notification grants exemption subject to the condition that the value of the clearances in the year did not exceed the prescribed ceiling, the manufacturer will come to know about his eligibility for exemption only at the end of the year and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (f) in any other case, the date of payment of duty." Refund claims relating to the present case type of situations do not come under any of the situations described in (a) to (e) and hence they will be covered by (f) only namely the date of payment of duty. 5. As was observed by the Divisional Bench of the Kerala High Court in the Pylunny case, the manufacturer is under no disability to file a refund claim in respect of payment of duty for goods within the exempted limit where he clears the goods on payment of duty. In the event of the value of goods cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X
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