1990 (3) TMI 203 - AT - Central Excise

Summary

Issues Involved:
1. Whether the assessments based on the initial price list subject to a price variation clause can be considered provisional.
2. Whether the relevant date for claiming a refund should be the date of final approval of the revised price list or the date of payment of duty.
3. Applicability of Section 11B of the Central Excise & Salt Act, 1944, regarding the time limit for claiming a refund.
4. The impact of not paying duty under protest on the limitation period for claiming a refund.

Issue-wise Detailed Analysis:

1. Provisional Assessment Based on Initial Price List:
The appellants argued that the initial assessments could not be considered final since the prices were subject to a price variation clause. They contended that the final prices were determined based on an index circulated by IEEMA, and they paid the differential duty accordingly. However, they also sought credit for lower final prices. The tribunal noted that the assessments were not done on a provisional basis as per Rule 9B of the Central Excise Rules. The tribunal emphasized that the provisional assessment under Rule 9B is the only recognized provisional assessment under Section 11B. Therefore, the initial assessments based on the price variation clause could not be considered provisional.

2. Relevant Date for Claiming Refund:
The appellants argued that the relevant date for claiming a refund should be the date of approval of the revised price list, not the date of payment of duty. They relied on the judgment of the Bombay High Court in Premier Automobiles Ltd. and a Special Bench decision in Hindustan Shipyard Limited. However, the tribunal highlighted that Section 11B clearly stipulates that the relevant date is the date of payment of duty unless the duty is paid provisionally under Rule 9B. Since the assessments were not provisional, the relevant date remained the date of payment of duty.

3. Applicability of Section 11B and Time Limit for Refund Claims:
Section 11B of the Central Excise & Salt Act, 1944, mandates that any claim for a refund of excise duty must be filed within six months from the relevant date, which is the date of payment of duty unless the duty was paid provisionally. The tribunal reiterated that the appellants did not follow the provisional assessment procedure under Rule 9B, and therefore, their refund claims filed after six months from the payment of duty were time-barred.

4. Impact of Not Paying Duty Under Protest:
The tribunal noted that the appellants did not pay the duty under protest, which is a requirement to save the limitation period under Section 11B. The tribunal emphasized that if the appellants had any dispute regarding the rate of duty or the price list approved, they should have paid the duty under protest or requested provisional assessment under Rule 9B. Since neither action was taken, their claims for a refund were not protected from the limitation period.

Conclusion:
The tribunal dismissed the appeals, concluding that the initial assessments could not be considered provisional, and the relevant date for claiming a refund was the date of payment of duty. The appellants' claims for a refund were time-barred under Section 11B, as they were filed beyond the six-month limitation period. The tribunal also noted that the appellants did not pay the duty under protest, which would have extended the limitation period. The appeals were therefore rejected, and the orders of the lower authorities were upheld.