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TMI Blog1985 (9) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... Kampani, Consultant, represented M/s. Siemens (India) Ltd. while Shri N.V. Raghavan Iyer Jt. CDR, the Collector. 3. The facts of the case have been spelt out in Shri Venkatesan s order and, hence, do not need to be repeated. 4. The point on which the difference of opinion arose has been formulated thus : What was the starting point for limitation (the date of payment of duty, or the date of assessment of the RT 12 return)? (as formulated by the Shri Venkatesan) Whether, in the case of assessees governed by S.R.P., the date of debit entry in the P.L.A. is to be reckoned as the reference date for the computation of the period of limitation prescribed in Rule 11 or the date of adjustment which the assessee makes in the P.L.A. on receipt of a copy of the R.T. 12 returns from the proper officer? (as formulated by Shri Hegde) Though formulated in different words, the point is the same. 5. Whereas Shri Venkatesan has taken the view that the limitation with reference to each clearance started running from the date of payment of duty, whether in cash or by debit in the Personal Ledger Account (P.L.A.) and not from the date of assessment by the proper officer on the R.T. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment by the proper officer. Under the S.R.P., it followed the self-determination of duty due by the assessee on the basis of the approved classification and price lists. This was by debit in the P.L.A. The term paid in Rule 11 thus did not mean the assessment process but the fact of payment of duty by debit in the P.L.A. 8. Nor did Rule 9 have a reference to the assessment process. The term adjustment in the said Rule clearly referred to the adjustment consequent on finalisation of a provisional assessment in terms of Rule 9B. The term was to be found also in Rule 173 I where it meant the adjustment consequent upon the assessment process; it referred to the adjustment of the duty actually paid by debit with a view to making good any deficiency in the duty paid or taking credit of any excess duty paid. 9. Shri Iyer contended that if the Calcutta High Court decision in 1978 E.L.T. 568 CAL was read closely, it would be clear that the ratio of that decision was of no help in the present situation. Nor was the ratio of the Supreme Court decision in 1978 E.L.T. 416 (S.C.) 1972 S.C. 2563 in the National Tobacco Co. case or the Patna High Court decision in AIR 1973 Patna 446 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the computation of limitation for claiming refund. Evidently, therefore, the adjustment in Rule 11 is not the adjustment in Rule 9B. 13. What, then, is the adjustment in Rule 11 ? As the rule itself makes it clear, the term refers to adjustments in the account-current maintained with the Collector under Rule 9. This latter rule contemplates payment of duty in cash or through on account-current maintained with the Collector. In the Physical Control situation, the assessee is required, in terms of Rule 52, to apply to the proper officer in the prescribed form for removal of goods. The officer assesses the amount of duty due on the goods and on production of evidence of payment of the duty, allows the goods to be cleared. The payment could be by cash or through adjustment in the account-current as required in Rule 9. It is true that this payment of duty follows the assessment process here. The reference date in Rule 11 for commencement of the limitation is the date of such payment or such adjustment. There is no provisional (not in the Rule 9B sense), or final assessment here. There is only one assessment and that is by the proper officer. 14. Now, let us look at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the information contained in it and after such further inquiry as he may consider necessary. He is to send a copy of the completed return to the assessee. 16. Sub-rule (2) of Rule 173-I provides that the duty determined and paid by the assessee under Rule 173-F shall be adjusted against the duty assessed by the proper officer under sub-rule (1) and when the duty so assessed is more than the duty determined and paid by the assessee the assessee shall pay the deficiency by making a debit in the account-current within 10 days of the receipt of the copy of the completed RT 12 return from the Proper Officer, and when such duty is less, the assessee shall take credit in the account-current for the excess on receipt of the assessment order in the copy of the return duly countersigned by the Superintendent of Central Excise. 17. A harmonious way of construing the different relevant provisions, especially Rules 9, 173-G, 173-I and 11, in the context of S.R.P., would appear to be to take the view that the date of payment of duty or adjustment in the account-current which is specified as the date of commencement of limitation in Rule 11 is the date of payment of duty by book-debit on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endorsement on the RT 12 return directing the former to pay the deficiency in duty. One of the points taken up by the petitioner before the Court was that no demand for excess duty could be finalised without a show cause notice. It appears that the Superintendent visited the factory, called for the P.L.A. and debited the amount and the petitioner took objection to this action also. The questions falling for decision, as set out by the Court in para 4 of the judgment, were : (i) whether the debit entries (annexures 3 to 6) could be made by respondent No. 1 in the accounts maintained by the petitioner in its various factories in exercise of his power under Section 11 of the Act ? (ii) Whether the demand in respect of the Chemical Factory could be realised by adjustment and the making of the debit entries in the accounts of the other three factories ? The Court found that for failure of the assessee to pay the deficiency by making the debit entry in the account-current, whatever else may follow, but certainly it does not follow that the proper officer himself can make the debit entry in the accounts". Consequently, the Court quashed the debit entry made by the Superintenden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etical application of the approved rate of duty and approved assessable unit value to the goods sought to be removed. The self-determination of the duty liability is thus preceded by all the essential ingredients of a proper assessment. The completion of the assessment memorandum on the monthly return in RT 12 form by the proper officer is more or less an arithmetical check on the correctness of the computations and payments by debits made by the assessee himself and is not designed, at that stage, to take the shape of a quasi-judicial assessment process. If the proper officer, for whatever good reason, is not in a position to make up his mind and accord approvals for the price lists and classification lists, he may order assessment under the provisional assessment procedure, but in a case where no provisional assessment has taken place, and the approvals have been given without any reservation, I think the self-determination of the duty by the assessee on the basis of price lists and classification lists approved by the proper officer is, to all intents and purposes, an assessment, subject, of course, to correction of arithmetical errors on completion of the assessment memorandum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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