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TMI Blog1987 (5) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... d be deemed to be the assessable value and the Appellant had to pay the duty as such. Sometime in 1973 the Appellants approached the Asstt. Collector and wanted him to consider that the value for assessment should be their sale price to Bajaj Company and not the sale price of Bajaj Company. The issue remained undecided and no approval of the price-list effective from 1-7-75 was forthcoming. The Appellants by their letter dated 3-7-75 requested that pending decision of the dispute as to the assessable value they would be clearing the goods on payment of duty on the selling price of Bajaj Company under protect . The Appellants also requested for early approval of their price-list. They started paying duty under protest by marking the G.P.I. with the words under protest . On 4-8-75, in reply to a representation made by the Appellants on 21-6-75, the Superintendent informed the Appellants as follows:- The matter is receiving attention and you will be informed in due course . In September, 1975 the Appellants again requested the Asstt. Collector to accord early approval of their price-list. The Appellants requested the Asstt. Collector to consider the said price-list effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the Appellant company had submitted price-lists under protest and clearing the goods on payment of duty under protest, the fact remained that they did not appeal against any of the approval of the price-list nor the assessment of R.T. 12 returns therefrom. It is observed in the order that if the assessee was aggrieved with such an approval and of the assessment of the R.T.12, he should have filed an appeal to the appellate authority under the then Section 35 of the Central Excises Salt Act, 1944. Having not done this, the orders of approval of the price-list and the assessment of the R.T.I 2s having not been invalidated till that date, the claim was rejected. 5. The Appellants preferred an appeal to the Collector (Appeals), who held as follows :- Whatever it may be, the price list pertaining to the period 3rd July 75 to 22nd July 80 having been duly approved and such approval remaining the same without being altered or rescinded or set aside, the question of granting them a refund of a portion of the excise duty paid by them during the period does not arise. The appeal was rejected. Hence the present proceedings. 6. Shri N. Mookherjee drew our attention to the main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operation in regard to the earlier price-lists. 10. The point for consideration in this Appeal is whether the Appellants are entitled to the refund claim. 11. It is seen from the narration of facts set out above that there was a dispute in regard to the assessable value of the clearances right from 1975. The Department was contending that the sale price of M/s. Bajaj should be assessable value as against the plea of the Appellants that their selling price to M/s. Bajaj alone should be taken into consideration. The Appellants have, in their letter dated 21-6-75 have categorically affirmed that stand to the Department. In reply to this letter, the Department has intimated the Appellants that the matter was receiving attention and the Appellants would be informed in due course. The subject of that letter is as follows :- Transfer prices - approval of, for payment of Central Excise duty - Reg. From this letter it is manifest that the Department did not treat the matter as closed or reached the stage of finality, but treated it as a case pending their decision. In this background there is considerable force in the contention that the Appellants were left with no other alternat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere any duty had been paid under protest. Rule 11, as it stood prior to the 15th amendment of the Rules, 1980 also contains a similar provision. Rule 173(C), now 173(0(8) provided for an assessee disputing the price list to pay the duty under protest on the basis of the price-list approved by the officers. When a protest is made it is the duty of the officer to conduct an enquiry and give his findings either approving the protest or rejecting the same. On the facts of the case it cannot be denied that no orders, have been passed by the Department in respect of the protest made by the Appellants right from 1975 to 1980. 14. We also find considerable force in the contention of Shri N. Mookherjee that the orders passed in this case could not be treated as final orders because no show cause notice was issued to the Appellants before the approval of the price-lists. The protest in the price-lists was not considered. The determination of assessable value of the goods is a quasi-judicial function and an opportunity should have been afforded to the Appellants of being heard before the orders were made. So, the decision on the price-lists without adjudicating on the applicability of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was filed against the approval of the price-list. We accept the contentions of the Appellants and allow the Appeal with consequential relief. 16. [Order per Syiem, Member (T)]. - The Assistant Collector says in his Order No. 36/33C-AC/Cal-XV/84, dated 31-5-1984 - since the duty was paid under protest the claim submitted by the said company is not time barred under Section 11B of the Central Excises and Salt Act, 1944 . He records again that Although the said company submitted such price-list under protest and cleared the goods on payment of duty under protest the fact remains that he did not appeal against any of the approval of the price-list nor the assessment on RT-12 returns and therefore, the legal position is that the price-list as approved and the RT-12 returns as assessed remains valid till date since the order have not been set aside by the any higher authority . 17. This is clear evidence that the payment was under protest and that the claim would not be time barred. The only objection of the Assistant Collector was that the assessee did not appeal against the approval of the price-list or assessment of the RT-12 returns and so, according to him, the legal positio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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