TMI Blog1995 (12) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... t is that the respondent firm had filed the claim for refund only on 28-12-1992 which was after the stipulated period of six months. The respondents were issued a show cause notice asking them to show cause as to why the claim for refund should not be rejected. They had filed a reply thereto, stating that due to mistake they had paid the excess duty. Further they stated that they had made a claim for refund of the amount paid in excess, in their RT return for the month of June, 1992 which was provisionally assessed on 10-8-1992 by the concerned Superintendent of Central Excise with a direction to file a refund claim to the Assistant Collector concerned with respect to the excess duty paid. On receipt of that direction they had filed the claim petition on 28-12-1992. Ld. Assistant Collector, however, held that the application for refund was filed beyond the period of six months and as such rejected the claim. 3. In appeal, learned Collector (A) held that in the instant case, the respondents herein had informed about the excess payment vide their monthly RT 12 return of June, 1992 submitted on 7-7-1992 and the date of excess payment of duty was 24-6-1992. He relied upon the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to direct the respondents in that behalf to make a separate application for refund. 7. He pointed out that Rule 173-I is not restricted by the amended Section 11B of the C.E.S.A. It was his contention that Rule 173-I was, further, amended by Notification No. 25/95-C.E. (N.T.), dated 31-5-1995. Then as per that amended Rule he pointed out that where duty on account of excess receipt is not ordered to be taken in the credit of the assessee within three months from the date of filing of return under sub-rule (3) of Rule 173G, there shall be paid to that assessee, interest at such rate as may be fixed by the Board under Section 11BB of the C.E.S.A. All these things go to show that Rule 173-I is an independent Rule and that is not dependent on Section 11B. Therefore, when it had come to the notice of the Superintendent concerned while approving the RT 12 return, that the respondent firm had paid an excess amount of duty it was for him to adjust the same and the respondents were not required to file a separate refund claim in this regard. Even if the refund application is filed by the respondents in this case, that is only in continuation of the claim of the respondents already made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (2) substituted by that Act : Provided further that the limitation of six months shall not apply where any duty has been paid under protest. * * * * * (2) If, on receipt of any such application, the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise as determined by the Assistant Collector of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable material used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant s account current maintained with the Collector of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) duty of excise paid by the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside lndia; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory, for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside lndia, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be. Therefore, Rule 173-I provides that the duty determined and paid by the assessee shall be adjusted against the duty assessed by the proper officer and where the duty so assessed is more than the duty determined and paid by the assessee, he shall pay the deficiency by making a debit in the account-current within ten days of receipt of copy of the return from the proper officer and where such duty is less, the assessee shall take credit in the account-current for the excess on receipt of the assessment order in the copy of the return duly countersigned by a Superintendent of Central Excise. The said Rule does not envisage a separate application for refund being filed by the assessee. Therefore, where the Superintendent concerned fails to make suitable endorsement and assess the return authorising the assessee to take credit of the duty paid in P.L.A. as contemplated under Rule 173-I(2), refund cannot be denied to an assessee on the ground of time-bar and for the default of the Superintendent concerned. In this case, though the Superintendent had made a remark that the respondent firm should make a claim for refund, that would not take away the respondents the right unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving consequent benefit. 43. That apart, we also find substance in the learned Counsel s submission that Rule 173-I has been framed with reference to Section 37 and is an independent provision. Section 11B also confirms this position by virtue of Clause 4 which significantly uses the phrases `Save as otherwise provided by or under this Act . In this connection, the learned Counsel has drawn our attention to the case of Indramani v. W.R. Natu reported in AIR 1963 SC 274 wherein the meanings of the expression `By the Act and `under the Act have been clearly stated and we are in respectful agreement with the same. 44. The learned Counsel has also drawn our attention to the Legal Glossary 1979 Edition which is a Government of India publication in which the phrase Save as otherwise expressly provided has been shown to mean Except when otherwise expressly provided . This shows that refund could also be claimed under other provisions if they provided for the same. Rule 173-I framed under Section 37 is one such provision which provides for payment to the Government/Assessee by way of debit/credit in the PLA and it was within the authority of the Superintendent to allow this adjustm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be adjusted against the duty assessed by the proper officer and where the duty so assessed is less than the duty paid by the assessee, the assessee shall take Credit in the account current for the excess. In the present case, the Superintendent has completed the assessment granting the benefit of exemption and the nil duty as per the assessment permitted the respondents in terms of Rule 173-I(2) to take the Credit in their account current. There is nothing in the language of the said Rule that the Credit that can be taken as envisaged under Rule 173-I(2) is the one arising from clerical errors in computation. The proper officer is required to assess the duty due on the basis of the information contained in the return filed under Rule 173G(3) and after making such further enquiry as he may consider necessary. Where the assessee has filed classification list for the purpose of classification and rate of duty and the same has been approved by the Assistant Collector, the RT 12 return has to be assessed by the Superintendent as per such approved classification list. In the present appeal, there is no case made out that the assessment carried out by the Superintendent in the RT 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open court at the end of the hearing. 17. So also, in the decision reported in 1990 (47) E.L.T. 112 in the case of Collector of Central Excise v. Indian Cable Co. Ltd. the Tribunal has taken the same view. However, in the decision reported in 1993 (63) E.L.T. 512 the Tribunal at para 11 held as follows : 11. ....... Further, the demand was also in line with the provisions of Rule 173-I(2). Where such assessment by the Superintendent of the RT 12 return is in accordance with the classification list submitted by the assessees themselves and approved by the Department, the adjustment of differential duty involved is governed by Rule 173-I and a notice under Section 11A of the Central Excises and Salt Act is not necessary. All the decisions against the RT 12 endorsements are in cases where there was an element of reassessment on the part of the Department, contrary to the earlier assessment or classification decision and contrary to the assessee s declaration. It is thus seen that the scopes of Rule 173-I and Section 11B are in different situations. Rule 173-I itself is a complete and self-contained provision and therefore, in this particular case, it was only a question of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed amount of duty in the event of a reduction in the rate of compounded levy, is mandatory. Note the use of the word shall. Therefore, whereas in the ordinary course the assessee is expected to make a claim for refund of duty on the ground that such duty was not payable by him, in terms of Central Excise Rule 11, in so far as excess payment of compounded levy is concerned. Rule 92B makes it obligatory on the part of the Central Excise Authority to refund the excess amount paid in the event of alteration in the rate of compounded levy without the assessee having to make a claim for the purpose. We are of the opinion that in view of the specific phraseology used in Rule 92B, the requirement in Rule 11 that the assessee shall make a claim within 6 months from the date of payment of duty, has no application to cases of excess payments of compounded levy which, in terms of Rule 92B, are obliged to be returned to the assessees without any claim being made therefor. In the result, we uphold the impugned order and dismiss this appeal." 20. Applying the principles laid down in the above-said decision to the facts and circumstances of the instant case, it is seen that Rule 173-I makes it o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation. After appreciating the various contentions raised by the parties, the Court observed as under : These decisions and the observations made therein could not be understood to mark a radical departure from the fundamental principle of construction that rules made under a statute must be treated as exactly as if they were in the Act and are of the same effect as if contained in the Act. (Emphasis supplied) Further in the case of Chief Inspector of Mines v. K.C. Thaper, AIR 1961 SC 838 while dealing with the similar contention the Court has observed that the Rules and Regulations have the same effect as if they are contained in the Act. For the purpose of construction they are to be treated as if contained in the Act. The relevant observation in paragraph 20 is as under : The true position appears to be that the Rules and Regulations do not lose their character as Rules and Regulations, even though they are to be of same effect as if contained in the Act. They continue to be rules subordinate to the Act, and though for certain purposes, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 173-I(2) if the duty is paid in excess, then it should be ordered to be taken in the credit of the assessee within three months and if it is not so ordered, interest on the same should be paid to the assessee under Section 11B of the C.E.S.A. 1944. This clearly goes to show that the intention of legislature is that Rule 173-I is a separate Rule by itself and the question of filing a refund application for that excess amount under Section 11B is not contemplated in such cases. 24. As against this, the decision of the Tribunal was brought to our notice by the learned JDR in Order No. A-814-815/Cal/1995, dated 14-7-1995 passed by this Bench, wherein the Tribunal observed as follows :- 6. ..... Thus, even if Rule 173-I provided for a different system of claiming refund that system of claiming refund under Rule 173-I stood modified in terms of sub-section (3) of Section 11B. It was, therefore, essential that any claim for refund after 20th September, l991 should conform to the pattern prescribed and laid down under amended Section 11 of the Central Excises and Salt Act, 1944. In coming to the above conclusion, the above-cited decisions were not brought to the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they have not passed on the incidence of duty which is over-paid in this case, then they are entitled for an adjustment for the duty so paid in terms of Rule 173-I(2). Accordingly, the matter is remanded to the Assistant Collector for deciding this aspect in accordance with law and in the light of our observations made above. The appeal of the Revenue is thus dismissed subject to the above observations. 26. [Assent per : P.C. Jain, Member (T)]. - While I agree with the conclusion that question of time-bar under Section 11B, in the facts and circumstances of this case, does not arise inasmuch as claim for refund had been made on RT 12 return by the respondents herein well within six months of the date of payment of duty and the formal refund application made by the respondents after expiry of the six months in pursuance of the direction of the Superintendent on the said RT 12 return, would have no bearing on the limitation stipulated under Section 11B, I do not agree that ratio of some of the Judgments cited and discussed in my ld. Brother s Judgment would apply when it is held as follows in para 24, while commenting on ld. Single Member Judgment in Order No. A-814-815/Cal/199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11B ibid that sub-section (3) does not prohibit claiming of refund in any manner other than in Section 11B. It only prohibits making of refund except as provided in sub-section (2). Making of refund under sub-section (2) is an act of the Assistant Collector and he can grant the refund to the applicant under certain circumstances stipulated in that sub- section, e.g. the applicant has not passed on the burden of duty of excise on another person, Claiming of Refund is to be made by a person. In the instant case, ld. Consultant has submitted, claim on RT 12 was made well within six months of the relevant date. Only for the purpose of providing the full details and complying with the procedural requirement of Section 11B(1), a formal application thereunder, in pursuance of the directions of the Superintendent on RT 12 return, was made by the respondent firm. 32. I agree with the aforesaid contention of the learned Consultant. Ld. Single Member in his Order dated 14-7-1995, in my view, with respect, has overlooked the language of sub-section (3) when he observes that `even if Rule 173-I provided for a different system of claiming refund, that system of claiming refund under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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