1988 (4) TMI 235 - AT - Central Excise

Issues Involved:
1. Whether the additional rebate claim is time-barred under Section 11 B of the Central Excises and Salt Act, 1944.
2. Whether the assessments were provisional and hence the time bar should be calculated from the date of finalization of the assessments.
3. Whether the supplementary claims dated 17.6.1983 and 2.4.1984 can be considered as amendments to the original claim or as fresh claims.

Issue-Wise Detailed Analysis:

1. Whether the additional rebate claim is time-barred under Section 11 B of the Central Excises and Salt Act, 1944:
The respondents initially filed a rebate claim of Rs.15,88,486.08 on 28th April 1978, which was sanctioned on 15.12.1978. On 17.6.1983, they filed another application for an additional rebate of Rs.9,94,225.08, later revised to Rs.13,75,984.86 on 2.4.1984. The department argued that these additional claims were time-barred under Section 11 B. They contended that the Order-in-Appeal No.72-CE/MRT/83 dated 10.3.1983 did not direct the filing of an additional rebate claim and could not go beyond the scope of the Order-in-Original. The respondents, however, argued that the additional rebate should be allowed as it flowed directly from the Order-in-Appeal.

The majority opinion held that the additional rebate claim was time-barred. The Sr. Vice-President noted that the additional claims did not arise out of the Order-in-Appeal dated 10.3.1983 and thus could not be considered under Section 11 B(3). The normal limitation period of six months from the date of duty payment applied, and the claims were filed beyond this period.

2. Whether the assessments were provisional and hence the time bar should be calculated from the date of finalization of the assessments:
The respondents claimed that the assessments were provisional and thus the time bar should be calculated from the date of finalization. The Assistant Collector did not accept this view, and the Collector (Appeals) also did not record any finding on whether the assessments were provisional. The Sr. Vice-President observed that the records did not indicate that the assessments were provisional as per Central Excise Rules 9B. The assessments were not marked as provisional, and no evidence was provided to show that any request for provisional assessment was made or any bond executed in terms of Rule 9B. Thus, the contention that the assessments were provisional remained unsubstantiated.

3. Whether the supplementary claims dated 17.6.1983 and 2.4.1984 can be considered as amendments to the original claim or as fresh claims:
The department argued that the supplementary claims were based on different dates and rates, beyond the scope of the original claim under Notification No. 108/78. The Sr. Vice-President agreed, stating that the supplementary claims were not mere amendments but fresh claims based on new parameters and rates after the decontrol of sugar on 15.8.1978. The original claim was based on Notification No. 108/78, while the supplementary claims were based on the amended notification and the interpretation in the case of Mawana Sugar Works. Therefore, the supplementary claims could not be treated as amendments to the original claim.

Final Order:
In view of the majority opinion, the appeal is allowed, and the additional rebate claims are considered time-barred. The assessments were not provisional, and the supplementary claims are treated as fresh claims, not amendments to the original claim. The appeal by the department is allowed, and the order of the Collector (Appeals) is set aside.

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