TMI Blog1991 (3) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... both the appeals are similar. For the sake of brevity the facts in respect of appeal No. 42/84 are being given below :- 3. M/s. P.M.T. Machine Tools Automatics Pvt. Ltd., Pune-18 had made an application for refund of Rs. 11,061.30 on the ground that some of the parts/components of the machines on which they had paid duty for machines under Tariff Item 52 instead of under T.I. 68 and that the said goods were not shown in the classification list of T.I. 52 and the correct classification of these parts should have been under T.I. 68. The application was made on 9th September, 1980 and it was mentioned in the application that the assessment under R.T. 12 was provisional and, therefore, the time limit of six months laid down in Rule 11 of the Central Excise Rules, 1944 should be reckoned from the date of the final assessment, which had still not been done. A show cause notice was issued to the respondents on the ground that the refund claim was not entertainable under Rule 11 of the Central Exise Rules, 1944 and the respondents in reply to the said show cause notice contended that the assessments were provisional and, therefore, the limitation of six months should apply only from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correctly paid in accordance with the rate of duty finally approved in the relevant classification list from time to time). 4. Being aggrieved from the aforesaid order, the respondent had filed an appeal before the Collector of Central Excise (Appeals), Bombay and before the Collector of Central Excise (Appeals), it was contended that the excess Central Excise duty was paid erroneously under T.I. 52 instead of T.I. 68 and limitation of six months did not apply in their case from the date of debit entry in PLA but applied from the date of final assessment and as long as assessment was not finalised under R.T. 12 return, they were entitled to claim refund. Before the Collector of Central Excise (Appeals), Bombay, the respondent had cited a decision of the Government of India in Revision Order No. 760/79 dated 22nd September, 1979. The Collector of Central Excise (Appeals), Bombay had observed that the period for the refund claim related from 16th May, 1979 to 20th November, 1979 and the refund was claimed on 9th September, 1980. The claim was for the components of the machines which were classified under T.1.68 but duty was paid by mistake under T.1.52. The Collector of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue's appeals. 9. Shri R.K. Jain, the learned Consultant who has appeared on behalf of the Bar Association, has reiterated the facts. He has pleaded that when the duty was paid, the assessments were provisional. In respect of valuation the refund claims were filed on the basis of classification. Shri Jain pleaded that the assessments in respect of valuation were provisional and were finalised on 25th July, 1981, whereas the refund claim for Rs. 11,061.30 was filed on 9th September, 1980 and the refund claim for Rs. 4587.91 was filed on 24th March, 1980. Shri R.K. Jain, the learned Consultant has referred to Rule 11. Shri R.K. Jain pleaded that during the period in dispute in both the matters erstwhile Rule 11 was prevalent and in terms of sub-rule (I) of rule 11any person claiming refund of any duty paid by him may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty provided, that the limitation of six months shall not apply where any duty has been paid under protest. Shri Jain also referred to the explanation to sub-rule (1) of Rule 11 which provided that where any duty was pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Jain argued that there can never be a piecemeal assessment. In support of his argument, he has referred to a judgment of the Madras High Court in the case of Collector of Central Excise, Madras v. Chennai Bottling Company, Madras, reported in 1986 (24) E.L.T. 3 (Mad.). Shri Jain has argued that in view of the judgments cited by him in the case of Kerala Electric Lamp Works Ltd. v. Collector of Central Excise, Cochin, reported in 1988 (33) E.L.T. 771 (Tri.), Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd., reported in 1978 (2) E.L.T. J416 and D.N. Kohli, Collector of Central Excise, Bombay v. Krishna Silicate Glass Works and Another, reported in 1983 (12) E.L.T. 216 (Bom.), limitation will run from the date of final assessment and not from the date of payment of duty. He argued that for the completion of the provisional assessment of R.T. 12 returns no regular notice was necessary under Section 11A. He also argued that Rule 173(1) and Rule 9B provide complete machinery in itself. Shri Jain argued that the approval of price list and the Classification List is not an assessment. He has referred to Section 11B and explanation (e) which defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty. There is a proviso that limitation of six months shall not apply where any duty has been paid under protest. There is also an explanation which shows that where "any duty is paid provisionally under these rules on the basis of the value or the rate of duty, the period of six months shall be computed from the date on which the duty is adjusted after final determination of the rule or the rate of duty. Hon'ble Supreme Court in the case of Kedarnath Jute Manufacturing Co. Ltd. v. Commissioner of Income-tax, reported in AIR 1971 SC 2145 had held that the quantification is effected by assessment proceedings. Relevant extract from Para No. 7 at Page 2146 of the said judgment is reproduced below :- "7. Now under all sales tax laws including the statute with which we are concerned, the moment a dealer makes either purchases or sales which are subject to taxation, the obligation to pay the tax arises and tax-ability is attracted. Although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal had been taking the consisting view that provisional assessments, for whatever reason provisional, were provisional for all purposes. We agree with the assessee. Section 11B of the Act, relating to refunds, specifically provides that - "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." The above provision makes no distinction based on the reason for the provisional assessment. Consequently, it is not possible to hold that the assessments were provisional for one ground of dispute but were final for the other ground. Provisional assessments have to be treated as provisional for all purposes. Since the assessments in the present case are still provisional, pending resolution of the dispute on the question of related person, we hold that consequential refund accruing to the assessee for the period prior to 25-3-1982 will not be hit by the time-bar of Section 11B." The Tribunal had followed the decision of the Supreme Court in the case of Asstt. Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd., reported in 1978 (2) E.L.T. J416. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld at most be a mechanical provisional collection, which would become a "levy" in the eye of law only after an "assessment", was itself a levy or an "assessment." Now this issue has been settled by the Supreme Court in the case of Samrat International (P) Ltd. v. Collector of Central Excise, Hyderabad, reported in (1991) 31 ECC 207 (SC). After the old Rule 11 has been repealed. Section 11B has been introduced. Now relevant Section 11B is in force which is similar to old Rule 11. Relevant extract from Section 11B is reproduced below :- "Section 11B. Claim for refund of duty. (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date. Provided that the limitation of six months shall not apply where any duty has been paid under protest." Hon'ble Supreme Court in the case of Samrat International (P) Ltd. v. Collector of Central Excise, Hyderabad, reported in (1991) 31 ECC 207 (SC) had the occasion to deal with the matter which was falling under Section 11B. In the matter before the Supreme Court, the assessee had filed the classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates of duty is necessitated, the Proper Officer shall make such modification and inform the assessee accordingly. Under Rule 173C, the assessee shall file with the Proper Officer a price list in prescribed form. Prior approval of the price list by the Proper Officer is necessary in the specified cases. Here also, sub-rule (5) of Rule 173C provides: "(5) Subject to the provisions of Rule 173CC, an assessee specified in sub- rule (2) shall not clear any goods from a factory, warehouse or other ap proved place of storage unless the price list has been approved by the Proper Officer. In case the Proper Officer is of the opinion that on account of any enquiry to be made in the matter or for any other reasons to be recorded in writing, there is likely to be delay in according approval, he shall either on a written request made by the assessee or of his own accord allow such assessee to avail himself of the procedure prescribed under Rule 9B for provisional assessment of the goods." "8. Under Rule 173CC, assessee may remove goods in certain cases pending approval by the Proper Officer of the classification of price list. Rule 173F provides that where the assessee has complied with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9B for provisional assessment of the goods. In the present case be tween 1st April, 1975 (sic) when the classification list was filed and 3rd June, 1985 when the list was approved, the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account. The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned. This is the procedure prescribed under Rule 9B except for the circumstance that no bond as provided in Rule 9B is required in a case where the personal ledger account is maintained for the clearance of the goods, since there is always a balance in the account-current suf ficient to cover the duty that may be demanded on the goods intended to be removed at any time. In these circumstances, the clearance of goods made by the appellant between 1st April and 3rd of June, 1985 were in accordance with the procedure for provisional assessment. In such a situation clause (e) of para (B) of the Explanation under Section 11B will be attracted. In this case the R.T. 12 Return for the month of April, 1985 was filed on 8-5-85 and the same was assessed on 29- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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