TMI Blog1999 (9) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... proved classification list is not a short levy. Differential duty cannot be recovered on the ground that it is a short levy. Rule 10 has then no application. We are, therefore, of the opinion that the. judgment in Ballarpur Industries [ 1995 (1) TMI 71 - SUPREME COURT OF INDIA ], which did not advert to Rule 173B, does not lay down the law correctly and it is over-ruled. The decision in Rainbow Industries [ 1994 (10) TMI 59 - SUPREME COURT OF INDIA ], on the other hand, correctly lays down the law. It was delivered in the context of Rule 173C dealing with approved price lists and the provisions of Rules 173C and 173B are analogous. We are informed that the position in law has. changed since the year 1995 or thereabout. We have not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee replied to the show cause notices on 24th May, 1978. It contended that the count of the NES yarn was determinable and it had been correctly classified. It also contended that the approved classification lists could not be re-opened and, therefore, the demands for differential duty could not be enforced. The Assistant Collector upheld the assessee's contention that the duty liability having been ascertained on the basis of an approved classification list, the question of short levy of duty did not arise. The Appellate Collector allowed the appeal of the Excise authorities, reclassified the NES yarn and confirmed the demands for differential duty. The assessee approached the Tribunal in appeal. The Tribunal held that the revise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file before the proper Excise Officer for approval a list of the goods that he proposes to clear. The list is required to contain a description of the goods produced or manufactured by him, the goods that he intends to remove and of excisable goods already deposited or likely to be deposited without payment of duty in his warehouse, and to indicate the tariff entry under which the goods that he intends to remove fall, the rate of duty leviable thereon and such other particulars as may be required. Sub-rule (2) reads thus : "(2) The proper Officer shall, after such inquiry as he deems fit, approve the list with such modification as are considered necessary and return one copy of the approved list to the assessee who shall, unless otherwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 74) E.LT. 3 (S.C.) = [1994 (6) S.C.C. 563] the appellant was a manufacturer of dyestuff. He had filed a price list as required by Rule 173C of the Central Excise Rules which was approved by the Excise authorities with effect from 1st October, 1975. About a year thereafter, the Assistant Collector issued a notice requiring the appellant to show cause why the net assessable value should not be revised and differential duty recovered. The appellant replied to the show cause notice but his contentions were not accepted up to the stage of the Tribunal. In the challenge before this Court to the order of the Tribunal it was contended that the price list submitted by the appellant having been accepted and acted upon, the Excise authorities were pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must relate to a period prior thereto as the purpose of the show cause notice is recovery of duties or charges short-levied, etc. We, therefore, find it difficult to accept the contention that the ratio of the decision in Rainbow Industries is that under Section 11A past dues cannot be demanded. We must, therefore, reject that contention." 9The order of reference cites the decision of a. Bench of three learned Judges in Collector of Central Excise v. Indian Oxygen Ltd. [1991 (51) E.L.T. A36]. By that brief order the appeal of the Excise authorities against a decision of the Tribunal was dismissed because the Bench was of the opinion that the decision of the Tribunal was correct in the facts and circumstances set out in that judgment. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not pay the amount that had been short-levied. Rule 10 does not deal with classification lists or relate to the re-opening of approved classification lists. That is exclusively provided for by Rule 173B. 13.The levy of excise duty on the basis of an approved classification list is the correct levy, at least until such time as to the correctness of the approval is questioned by the issuance to the assessee of a show cause notice. It is only when the correctness of the approval is challenged that an approved classification list ceases to be such. 14The levy of excise duty on the basis of an. approved classification list is not a short levy. Differential duty cannot be recovered on the ground that it is a short levy. Rule 10 has then no ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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