1986 (1) TMI 285 - AT - Central Excise

Summary

Issues:
1. Whether the provisions of Chapter VII-A of Central Excise Rules, 1944 envisage provisional assessment or not.
2. Whether limitation period is to be counted from the date of payment of duty as envisaged under Rule 11 or Section 11B or from the date of assessment.

Analysis:

Issue 1: Provisional Assessment under Chapter VII-A
The Collector contended that the assessments under Chapter VII-A are final and not provisional, as argued by the Tribunal. He emphasized that the relevant rules under Chapter VII-A, such as Rule 173A, 173B, 173C, 173F, and 173G, require the assessee to clear goods after assessment to duty, with approval of classification and price lists. The Collector argued that assessments under Chapter VII-A cannot be considered provisional as they involve determination of duty before clearance of goods. He also highlighted that provisions like Rule 173-I aim at re-assessment of duty, not provisional assessment. The Collector's position was supported by references to previous Tribunal judgments and the Supreme Court's decision in National Tobacco case. The Tribunal, however, disagreed with the Collector's interpretation, stating that assessments under Chapter VII-A are provisional until finalization through the RT-12 return assessment.

Issue 2: Limitation Period for Refund Claim
The second issue raised was regarding the limitation period for claiming a refund of duty paid. The Tribunal held that the relevant date for claiming a refund under Section 11B would be the date of adjustment of duty after final assessment, in line with the explanation (B)(e) to Section 11B. This decision was based on the Tribunal's interpretation of the law and its application to the specific case of M/s. Digvijay Cement Co. Ltd. The Collector argued that the limitation period should be counted from the date of payment of duty, not from the date of assessment. The Tribunal's decision to refer this issue to the High Court for clarification indicates the complexity and significance of determining the correct starting point for the limitation period in refund cases.

In conclusion, the judgment delves into the interpretation of provisions under Chapter VII-A of the Central Excise Rules, particularly regarding the nature of assessments and the calculation of the limitation period for refund claims. The differing views between the Collector and the Tribunal underscore the need for legal clarity on these issues, leading to the reference of the points of law to the Hon'ble Gujarat High Court for resolution.