1989 (9) TMI 266 - AT - Central Excise

Summary

Issues Involved:
1. Time-barred appeal
2. Relevant date for refund claim under Section 11B
3. Nature of debit in PLA and assessment of duty
4. Provisional determination of duty by the assessee
5. Applicability of Section 27 of the Customs Act and Section 11B of the Central Excise Act
6. Role of the Assistant Collector and Superintendent in the assessment process

Issue-wise Detailed Analysis:

1. Time-barred Appeal:
At the outset, it was observed that the appeal was prima facie time-barred as the date of communication of the impugned order was 15-3-1986, and the date of receipt of the appeal in the Registry was 17th June 1986. The appellant's consultant stated that the appeal was dispatched by registered post on 10-6-1986, expecting it to be received within the due date of 15th June 1986. The delay of two days, attributed to postal delays, was condoned as there was no objection from the Departmental Representative.

2. Relevant Date for Refund Claim under Section 11B:
The appellant argued that the refund claim was not time-barred as the six-month limit should be counted from the date of payment of duty, not from the date of adjustment in the PLA. They contended that the debit in PLA is a deposit, and the relevant date is the date of assessment on RT-12. The tribunal agreed, stating that the time limit for claiming a refund is six months from the date of payment of duty, not from the date of adjustment deposit in the PLA, as per Section 11B.

3. Nature of Debit in PLA and Assessment of Duty:
The appellant argued that the debit in PLA is a deposit, and the assessment is made on RT-12. The tribunal noted that the self-determination of duty liability by the assessee is provisional and not equivalent to an assessment of duty. The tribunal emphasized that the term "duty" in Section 11B refers to assessed duty, not deemed duty or deposits in PLA.

4. Provisional Determination of Duty by the Assessee:
The tribunal highlighted that the process of assessment in Central Excise involves multiple stages, including approval of classification, price list, and RT-12. The determination of duty liability by the assessee under Rule 173F is provisional, pending approval by the proper officer. The tribunal compared this process to the self-determination of tax liability under the Income-tax Act, emphasizing that provisional deposits do not amount to assessed duty.

5. Applicability of Section 27 of the Customs Act and Section 11B of the Central Excise Act:
The tribunal distinguished Section 27 of the Customs Act from Section 11B of the Central Excise Act, stating that they are not para materia. The tribunal noted that the cases cited by the SDR, including Miles India and Doaba Cooperative Sugar Mills, were not applicable to the facts of this case, as they did not pertain to Section 11B.

6. Role of the Assistant Collector and Superintendent in the Assessment Process:
The tribunal emphasized that the power to approve the classification list, price list, and complete RT-12 is vested in the proper officers, i.e., the Assistant Collector and Superintendent. The tribunal noted that the refund application was premature as the classification list had not been approved at the time of filing. The tribunal concluded that the refund application was not time-barred and should be considered on merits.

Conclusion:
The tribunal set aside the order rejecting the appellant's refund claim and remanded the matter to the Assistant Collector for consideration on merits. The tribunal emphasized that the self-determination of duty liability by the assessee is provisional and not equivalent to an assessment of duty. The relevant date for calculating the time limit under Section 11B is the date of payment of duty, not the date of adjustment in the PLA. The appeal was allowed, and the matter was remanded for consideration on merits.