TMI Blog2000 (2) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of limitation contained in Section 11B of the Central Excise Act will not be attracted. 3. Before reverting to the issue it would be beneficial to refer to the relevant provisions of the Central Excises Act and the Rules framed thereunder regarding determination of assessable value of the goods, payment of Excise duty thereon by the assessee and subsequent maintainability of claim of the assessee for the refund of the duty on the plea of existence or non-existence of price variation clause in the contract/purchase orders. 4. Section 4 of the Act provides for the valuation of excisable goods for purposes of charging of duty of excise. This Section enacts that where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value, shall, subject to the other provisions of this section, be deemed to be the normal price thereof that is to say the price at which the goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale, provided that (i) where, in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturers/private warehouse licensees is contained in Chapter VII-A. Rule 173B of this Chapter cast duty on every assessee to file declaration of goods produced and manufactured in the factory showing the full descriptions of all (i) excisable goods manufactured by him (ii) all other goods produced or manufactured by him or intended to be removed from his factory (iii) all excisable goods already deposited or likely to be deposited from time to time without payment of duty in his warehouse (iv) the rate of duty leviable in each such goods (v) the exemption notification availed or proposed to be availed, if any, and such other particulars, as Commissioner may direct. The assessee under this rule is required to obtain acknowledgement of this declaration from the proper officer. However, he has been permitted under clause (ii) of this rule to file fresh declaration or amendment of the declaration already made where the alteration has become necessary because of the circumstances mentioned in this clause. 8. Similarly, the procedure regarding valuation of the goods assessable ad valorem, to be followed by the assessee has been detailed in Rule 173C. This rule enacts that every a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall pay the duty determined by him for each consignment by debit to such current-account before removal of the goods. This procedure is known as self removal procedure (SRP). 11.The assessment of the excise duty payable on the goods removed by the assessee under the SRP referred to above, has to be ultimately made by the proper officer under Rule 173-I. This rule enacts that the proper officer shall on the basis of information contained in the return filed by the assessee under Rule 173G (referred to above) and after such further enquiry as he may consider necessary, assess the duty due on the goods removed and complete the final assessment memorandum in the return. The duty determined and paid by the assessee under Rule 173F 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 under the SRP, he shall pay the deficiency by making a debit in the current-account within three months from the date 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 ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact whether duty was paid under the final assessment where the price of the goods was fixed or under provisional assessment where the exact price of the goods and the duty due thereon was not determinable on account of price variation/escalation clause in the contract/purchase order has been subjected to the provisions of Section 11B of the Act. The said section clearly enacts that any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise before the expiry of six months from the relevant date in such a manner as may be prescribed and the application shall be accompanied by such documentary or other evidence as the applicant/assessee may furnish to establish his claim. However, second proviso appended to this Section makes the limitation of six months non-applicable where the duty had been paid under protest. 15.Therefore, the assessee cannot be allowed exemption from the period of limitation prescribed by Section 11B of the Act for seeking refund of the duty on the simple ground that his contract/purchase order under which he supplied the goods contained variation/escalation clause. The lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o put up the that claim within that period, the bar of limitation as contained in that section would be attracted and his application will be rejected on that account. The statement of law made in Indian Aluminium Cables Ltd. (supra) by the Bench of the Tribunal that provisions of Section 11B are for claiming refund of the duty amount where the contract/purchase order contains a variation/escalation clause, would not be attracted, cannot be said to be correct one. In that case, the Bench had, no doubt, placed reliance on the judgment of Bombay High Court in a Premier Automobile Ltd. v. Union of India Ors., 1987 (30) E.L.T. 71 but the facts therein before the Court were quite different. There, the control price for the car was challenged by the manufacturer who fixed the higher price before the Supreme Court, but continued to sell the vehicles on control price by reserving his right to charge higher price if control order was invalidated by the Supreme Court. When later on he succeeded in the Supreme Court, he recovered difference between control price and the price fixed by him. Under these circumstances, the Hon'ble Bombay High Court was pleased to observe that the "higher price ..... X X X X Extracts X X X X X X X X Extracts X X X X
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