9911796707
TMI Blog1986 (4) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... s mostly imported from Middle-East countries. Rock Phosphate is a chemical fertilizer covered by Tariff Item 14HH of the Central Excise Tariff and is a base fertilizer. The duty prescribed under the said Tariff Item 14HH on 'Fertilizers All Sorts' is at the rate of the 10% ad valorem and as such, countervailing duty at the rate of 10% ad valorem was paid in respect of the base fertilizer i.e. Rock Phosphate under Section 2A of the Indian Tariff Act, 1934. The particulars of the bill of entries, the net quantity shown in the bill of entry and the amount of duty paid is annexed as Annexure 'K' to the writ petition. The details of payment of import duty on Rock Phosphate, receipt of Rock Phosphate in D.C.M. Chemical Works, Najafgarh Road, New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en operative during the entire period in respect of which the refund was claimed i.e. from March 1, 1969 to September 2, 1969, countervailing duty paid should have been set off from the excise duty paid by the petitioner at the time of clearance of such Super-phosphate from the factory, and as that had not been done with the result that an excess of excise duty has been paid and the petitioner, therefore, claimed for the refund of an amount of Rs. 1,40,534.84 being the excess amount of excise paid in the circumstances narrated in the refund application. 5. The claim for refund was considered by the Assistant Collector and rejected by the first impugned order dated May 30, 1970. One observation made is that the petitioners had asked for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from payment of that amount as is equal to the excise/countervailing duty paid on the base fertilizer. Thus, what is admissible as refund would be excess payment, if established, paid on the final product manufactured and cleared on payment of the full excise duty leviable thereon. No data has been presented in respect of clearances of the manufactured fertilizer in which imported rock phosphate has been used. The simple claim for refund of countervailing duty, therefore, fails for want of legal authority." 6. In my view, the Excise Authorities have misdirected themselves in law in considering the claim of the petitioner as simple claim for refund of countervailing duty. It is clear from the refund application and the grounds of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strange that the Excise Authorities had construed this application as a simple claim for refund of the countervailing duty. 7. The other reason given by the Assistant Collector and the Appellate Collector is that the credit of the duty could have been afforded to the petitioner, had the party availed of the provisions of Rule 56A. I may recall that the petitioner had requested for proforma credit on the duty they had paid on Rock Phosphate. This could not have been allowed and in my view rightly, with retrospective effect. 8. A consignment of 2,000 M.T. was cleared by the petitioner under the bill of entry 46 dated March 26, 1969 on which a countervailing duty at the rate of 10% ad valorem amounting to Rs. 26,455.80 was paid. The same qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, paid on the final product manufactured and cleared on payment of the full excise duty leviable thereon. The Revisional Authority, however, proceeds to record that no data has been prepared in respect of clearances of the manufactured fertilizer in which imported Rock Phosphate has been used. I have already referred in some detail to the material placed before the Excise Authorities which, prima facie, establishes the amount of duty paid as countervailing duty in respect of the base fertilizer and the excess excise duty paid in respect of the product Super-Phosphate. 10. Mr. Misra, the learned counsel for the Excise Authorities has raised an additional point of the bar of limitation. The bar of limitation was not raised, considered or de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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