1990 (9) TMI 196 - AT - Central Excise

Summary

Issues:
1. Time limitation for filing a refund claim under Section 11B of the Central Excise Act.
2. Classification of goods and payment of duty.
3. Application of Section 11B(5)(e) and relevant date for refund claims.
4. Provisional assessment and its implications on refund claims.
5. Duty of the Superintendent in implementing Assistant Collector's orders.

Analysis:
1. The appeal was filed by the department against the Collector (Appeals) New Delhi's order rejecting a refund claim as time-barred under Section 11B of the Central Excise Act. The respondents manufactured goods and paid duty based on a classification list effective from 1-4-1987, which was later modified by the Assistant Collector on 27-7-1987.

2. The respondents removed goods before the classification list approval, paid duty at the declared rate, and subsequently filed a refund claim on 9-11-1987. The Assistant Collector rejected the claim as time-barred, but the Collector (Appeals) set it aside, citing Section 11B(5)(e) as applicable, which the department contested.

3. The department argued that there is no sub-section 5(e) in Section 11B, and the relevant date for refund claims should be determined under Section 11B(5). They contended that since the duty was not paid provisionally, the provision of Section 11B(5)(e) could not be applied.

4. The respondents claimed that their payment before the approval of the classification list should be considered provisional, falling under explanation (B) of Section 11B. They also highlighted the completion of RT 12 returns as a factor in determining the time limit for refund claims.

5. The Tribunal observed that the payment made before assessment could only be deemed as 'deemed duty' and not actual duty, considering it provisional. The time period for filing a refund claim under Section 11B would start from the date of assessment, not the date of deposit in anticipation of assessment. The Superintendent was obligated to implement the Assistant Collector's orders correctly and make necessary adjustments during assessment.

6. Consequently, the Tribunal rejected the appeal, noting that the refund application was filed within six months from the date of assessment, thus falling within the prescribed time limit under Section 11B. The duty of the Superintendent to implement orders and make necessary adjustments was emphasized, regardless of a formal refund application by the assessee.