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TMI Blog1986 (10) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... e wire ropes. Central Excise duty on this item was introduced w.e.f. 1-3-1973 on ad valorem basis. The appellants did not have a regular price list as such of their goods. They sold their wire ropes on contract basis. They had 3 types of sales :- (i) Sale to D.G.S.& D./Government departments on rate contract basis; (ii) Sale to industrial buyers/dealers on individual contract basis. Each contract was filed as a price list for approval of the central excise authorities; and (iii) Stock transfer to their depots located at various places in India. From these depots, the goods were sold to general buyers on contract basis. The dispute is on the last category to sales only in both the appeals. About 60% of the goods were sold ex- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uliar position in which they had paid the differential duties amounting to Rs. 7.63 lakhs in the case of ex-depot sales at higher prices but in which their refund claims for Rs. 2.28 lakhs stood rejected in the case of ex-depot sales at lower prices. They then asked for refund on 24-10-1978 of the differential duties of Rs. 7,63,775.14 which they had earlier paid. The Assistant Collector rejected this claim holding that the appellants had accepted the price approval, that the price approval was not provisional and that the refund claim was time barred under Rule 11. The Appellate Collector up-held the rejection on the ground this time that stock transfer from the factory did not involve any sale and the ex-depot sale price was the correct a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if the actual sale prices ex-depots happened to be higher. The Superintendent's price approval endorsement dated 1.11.1974, but with retrospective effect from 1.3.1973, spells out this arrangement. This understanding between the appellants and the department was formalised into provisional assessment procedure under rule 9B of the Central Excise Rules, 1944 when the appellants executed the B13 bond prescribed in the said rule on 19-8-1974. It is only with effect from this date that initial assessments of stock transfer goods from the appellants' factory could be said to be provisional in the statutory sense of Rule 9B. Whatever understanding existed between the appellants and the department prior to this date could not amount to provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the guarantee of the Bank till August, 1978, we can say that all initial duty payments for stock transfer were provisional from 19.8.1974 to June, 1977, the period with which we are concerned. 6. According to sub-rule (5) of rule 9B, the duty assessed provisionally has to be finalised and adjustment made by way of recovery of differential duty if the duty provisionally assessed was less or by way of refund if the duty provisionally assessed was more. No formal order finalising the assessments is on record. However, it is undisputed that 21 demands for differential duty in form DD-2 were issued on reassessment in terms of rule 9B(5). It has, therefore, to be held that provisional assessment for a particular period stood finalised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples that the two cases before us have to be decided. Relying on the ruling at 1986 (25) E.L.T. 867 (SC), the appellants contended that when the levy was ab initio illegal, right to refund was embedded in the fact of payment. Well, the right may be there but if the remedy was barred by the Act and the rules, the authorities constituted under the Act could not transgress the provision of the Act and the rules to allow the right. The departmental authorities could grant refund only in terms of Rule 11. The appellants filed their refund claims before the authorities under this rule only. They were, therefore, bound by the terms and conditions of the rule, including the limitation laid down by the rule. The rule prescribed the time limit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the demands were not preceded by a show cause notice, much less adjudication. But the appellants were under no compulsion to pay them. They had the right to represent against the demands to the Assistant Collector and appeal against them to the Appellate Collector. They did nothing of the kind. They willingly paid the demands. They did not even lodge a protest at the time of payment. From their conduct, it is clear that they accepted the demands and paid them willingly. Even after the payments, they had yet another remedy inasmuch as they could ask for its refund within the time limit of Rule 11. They did not do this either. They came up for refund long after the date of finalisation of assessments and payment of differential duty. If th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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