1995 (4) TMI 159 - AT - Central Excise

Summary

Issues Involved:
1. Provisional assessment under Central Excise law.
2. Limitation period for filing refund claims under exemption notifications based on annual turnover.
3. Relevant date for computation of time limit for refund claims.

Issue-wise Detailed Analysis:

1. Provisional Assessment Under Central Excise Law:

The appeal was filed by the Collector of Central Excise, New Delhi, challenging the decision of the Collector (Appeals) who treated the case as one of provisional assessment. The Assistant Collector had rejected the refund claim on the ground that it was time-barred and that the respondents had not applied for exemption under Notification 83/83 in their classification list. The Collector (Appeals) accepted the respondents' contention that the eligibility for the exemption could only be ascertained at the end of the financial year. The Collector (Appeals) cited a Government of India order in Revision and concluded that the case should be treated as one of provisional assessment, thus considering the refund claim to be filed in time.

The appeal argued that there is no deemed provisional assessment under Central Excise law without a formal order under Rule 9B. The Tribunal found that the Collector (Appeals) erred in treating the case as provisional assessment without a formal order, bond execution, or deliberate action by the proper officer. The Tribunal accepted the plea that the Collector (Appeals) was incorrect in treating the assessment as provisional based on the subsequent filing of a refund claim linked to an exemption notification.

2. Limitation Period for Filing Refund Claims Under Exemption Notifications Based on Annual Turnover:

The Tribunal reviewed conflicting decisions regarding the commencement of the limitation period for refund claims under exemption notifications based on annual turnover. The Collector (Appeals) had accepted the respondents' plea that the limitation period starts from the close of the financial year, citing various judgments supporting this view.

The Tribunal noted conflicting decisions:
- Decisions Supporting Commencement from the End of the Financial Year:
- T.T. Pylunny Royal Smiths v. UOI (Kerala): Limitation starts from the last date of the year.
- Auric Engg. Pvt. Ltd. v. Asstt. Collector: Supported this view.
- Weikfield Products Company (India) Pvt. Ltd. v. Union of India: Right to claim exemption accrues at the end of the financial year.
- C.C.E., Kanpur v. Tin Can Manufacturers: Majority view held that limitation commences from the end of the year.

- Decisions Supporting Commencement from the Date of Payment of Duty:
- Asstt. Collector v. T.T. Pylunny (Kerala High Court): Limitation starts from the date of payment or adjustment of duty.
- Asian Bearing Ltd. v. Collector of Central Excise: Majority view supporting this.
- BTX Chemicals v. Collector of Central Excise: Limitation begins from the date of payment of duty.

The Tribunal observed that the term "relevant date" under Section 11B of the Central Excises and Salt Act, 1944, does not specifically define situations involving exemption notifications based on annual turnover. The Tribunal leaned towards the view that the relevant date should be the date of payment of duty, aligning with the Divisional Bench of the Kerala High Court and the majority decision in the Asian Bearing case.

3. Relevant Date for Computation of Time Limit for Refund Claims:

The Tribunal examined the definition of "relevant date" under Section 11B, which includes various scenarios but does not specifically address exemption notifications based on annual turnover. The Tribunal concluded that, in the absence of a specific definition extending the relevant date to the close of the year, the date of payment of duty should be considered the relevant date.

Conclusion:

The Tribunal found that the Collector (Appeals) erred in treating the case as one of provisional assessment without a formal order. The Tribunal also leaned towards the view that the limitation period for refund claims should commence from the date of payment of duty, but acknowledged the conflicting views and referred the matter to the Honourable Vice President of the Tribunal for constituting a Larger Bench to resolve the conflict.

Separate Judgment:

Order per: Jyoti Balasundaram, Member (J):

While agreeing that the matter requires referral to a Larger Bench, Member (J) did not associate with the findings in paragraph 5 of the order expressing concurrence with the view taken by the Kerala High Court in the Pylunny case and the Tribunal in the Asian Bearing case, leaving the conflict open for resolution by the Larger Bench.