1991 (1) TMI 267 - AT - Central Excise

Summary

Issues Involved:
1. Determination of assessable value for excise duty.
2. Validity of protest letters in saving limitation under Rule 11.
3. Legality of the Collector's review order on new grounds.

Detailed Analysis:

1. Determination of Assessable Value for Excise Duty:

The core issue revolves around the assessable value of dye-stuffs manufactured by the appellants. Initially, the Excise authorities contended that the assessable value should be based on the resale price of the wholesalers, I.C.I. Private Limited and Atul Products Limited, rather than the price at which the appellants sold the dye-stuffs to these wholesalers. This contention was upheld by the adjudicating authority and the 1st appellate authority. However, the Supreme Court, in Civil Appeal No. 1868 of 1970, reversed this judgment, holding that "the wholesale cash price charged by the manufacturer to the wholesale dealer less trade discount would represent the value of the goods for the purpose of assessment of excise." The Supreme Court directed that the assessable value should be the price at which the appellants sold the dye-stuffs to ICI and Atul, less 18% trade discount, and not the resale price charged by ICI and Atul to their dealers.

2. Validity of Protest Letters in Saving Limitation Under Rule 11:

The appellants consistently paid excise duty under protest from 1963. They argued that the letters of protest lodged concurrently with the payment of duty should be considered a valid protest, thus saving them from the limitation prescribed under Rule 11 of the CE Rules. The Tribunal supported this view, referencing the case of M/s. Pure Drinks (New Delhi) Ltd. v. CCE New Delhi, which held that "once a protest is made within the limitation period then the claims flowing qua that protest must be deemed alive till they are disposed of through adjudication proceedings." Additionally, the Supreme Court in India Cements Ltd. v. CCE held that a letter disputing duty is adequate protest, thereby making the limitation under Rule 11 inapplicable.

3. Legality of the Collector's Review Order on New Grounds:

The Assistant Collector had initially discharged six show cause notices as unsustainable. However, the Collector issued a review show cause notice proposing to set aside the Assistant Collector's order on the ground that the refund claims were time-barred under Rule 11. The Tribunal found this review to be impermissible, as the new ground (time-barred refunds) was not part of the original show cause notice. The Tribunal emphasized that the Collector's review on a new ground is not permissible, thus setting aside the Collector's order and allowing the appeal.

Conclusion:

The Tribunal concluded that the bar of 3 months limitation prescribed in Rule 11 does not operate against the appellants due to the valid protest letters. The appeal was allowed, and the impugned order of the Collector was set aside. The Tribunal reaffirmed that the assessable value of the dye-stuffs should be based on the price at which the appellants sold the goods to ICI and Atul, less trade discount, as per the Supreme Court's judgment. The review show cause notice by the Collector was deemed invalid as it introduced a new ground not present in the original proceedings.