TMI Blog2002 (12) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduced with retrospective effect, is also to be considered. We, therefore, deem it proper to remand the matter back to the Tribunal for consideration of these aspects. If the Tribunal holds that after the notification was rescinded w.e.f. 1-3-1986; Paragraph 3 of the Appendix became inoperative, then the position would be different. While considering that aspect the effect of Section 38A has to be kept in view. In case the Tribunal comes to the conclusion that Paragraph 3 of the Appendix was applicable because of Section 38(A)(C), it has to consider the further stand of the assessee about adjustment in the credit account maintained under Paragraph 5 of the Appendix. - 3387-3388 of 1992 - - - Dated:- 20-12-2002 - Syed Shah Mohammed Quadri and Arijit Pasayat, JJ. [Judgment per : Arijit Pasayat, J.]. - These appeals are directed against common judgment of the Customs, Excise Gold (Control) Appellate Tribunal, New Delhi (in short 'the Tribunal'). 2.Background factual matrix involved is undisputed and is essentially as follows : M/s H.M.M. Limited (subsequently known as M/s. Smithkline Beecham Consumer Health Care Ltd.), (hereinafter referred to as 'the assessee') was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of Notification No. 55/75. The High Court accepted this stand of the Sellers. The Sellers had paid excise duty on the inputs, and, therefore, the assessee had taken credit in respect of the amount of duty paid on the inputs. Pursuant to the High Court's order appellant had refunded the duty. Barmalt took refund of the amounts paid on 8-11-1985 and 14-11-1985, while Malt India was refunded the amount involved on 8-5-1987. On 7-9-1987 a Demand show cause notice was issued by the Assistant Collector requiring it to show cause as to why the amount of duty involved in the set-off be not recovered from it under paragraph 3 of the Appendix to the Notification No. 201/1979. Assessee submitted its reply taking the stand that the notice was issued beyond the prescribed period of limitation under Section 11A of the Act. In any event, cash recovery was not permissible and what at the most the authorities could do was to adjust the amount from the credit account maintained in terms of Paragraph 5. The plea did not find acceptance and by order dated 22-12-1987 the Assistant Collector confirmed the demand. Appeals before the Collector of Central Excise (Appeals) did not bring any relief to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fastened on the assessee. With reference to the decision of this Court in the case of one of the sellers i.e. Barmalt in Union of India and Ors. v. Barmalt (India) Ltd., Gurgaon and Ors. [1997 (5) SCC 748] it was submitted that the ratio is applicable so far as other parties are concerned and the procedure adopted in terms of that judgment applied. It is to be noted that the present dispute has become academic so far as Barmalt is concerned, because of the aforesaid judgment. In any event it was contended there was no scope for demanding payment of duty when Paragraph 5 to the Appendix permits adjustment. 7.Mr. D.A. Dave, learned Senior Counsel appearing for the sellers who were added as parties as per this Court's order dated 1-8-2001, submitted that the procedure adopted in Barmalt case (supra) cannot be applied to others in view of what has been specifically stated by this Court in the said case. 8.From the impugned order it is noted that the Tribunal referred to an earlier judgment by it in the case of Bakeman Home Products v. Collector of Central Excise [1990 (48) E.L.T. 518] and held that Section 11A was applicable. The said provision reads as follows : "11A. Recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evy was made as per the applicable statutes. Only a benefit was granted to the manufacturer in respect of the duty already paid on the inputs which constitute raw materials or component parts in the excisable goods. The benefit was granted by exercise of powers conferred by sub-rule (1) of Rule 8 of the Rules providing exemption of all excisable goods on which duty of excise is leviable and in the manufacture of which some other goods have been used as inputs. If the inputs have suffered duty, the quantum thereof was allowed to be set-off. There is no variation of the duty leviable. That is invariable. What is determined is the quantum of duty payable after adjustment of the duty paid on the inputs. Section 3 is the charging Section and Section 4 deals with valuation of excisable goods for the purposes of charging duties of excise. Section 11A, which was introduced with effect from 17-11-1980, provides for recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. It is to be noted that the scheme under the notification is essentially linked with quantification and collection. The method of collection does not affect the essence of duty, but on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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