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TMI Blog1988 (5) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the period from 3.11.1981 to 29.4.1982 on the ground that the NMP chips were manufactured out of caprolactum, which was a chemical derived from raw naphtha and was to be assessed at concessional rate of duty under Notification No. 7/80-C.E., dated 27.2.1980. The refund claim was rejected by the Assistant Collector of Central Excise on two grounds, viz. (i) the benefit of concessional rate of duty under Notification No. 7/80-C.E. was not available as the NMP chips were manufactured not only from indigenous caprolactum but also imported caprolactum, and (ii) the refund claim was time-barred under Section 11 -B of the Central Excises Salt Act, 1944. The order of the Assistant Collector was upheld by the Collector of Central Excise (Appeals), Madras by the impugned order, which has been challenged by the appellants before us in this appeal. 2. While upholding the order of the Assistant Collector, the Collector (Appeals) has held that the expression duty of excise appearing in the Notification No. 7/80-C.E. would refer to duty leviable under the Central Excises Salt Act and not to any duty leviable under the Customs Tariff Act, 1975; additional duty paid on the imported capro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J.D.R. has argued for the respondent-Collector during the hearing before us. He has fairly conceded that on merit, this case is fully covered by this Tribunal s Orders No. 620-621/87-C, dated 18.8.1987. Regarding limitation he has stated that under Rule 173-F of the Central Excise Rules, 1944 the assessee determines the duty payable. He is responsible for determining the duty correctly. If there is any excess payment of duty, he is required to file refund claim under Section 11 -B within 6 months from the date of payment of duty. He has also stated that in the case of Mettur Chemical and Industrial Corporation Ltd. v. Collector of Central Excise, Coimbatore, reported in 1986 (26) ELT 756 (Tribunal), this Tribunal has held that the period of 6 months is computable from the date of payment of duty and not from the date of approval of RT-12 Return. 5. We have considered the arguments and the records of the case. In support of his argument on merit of the case, Shri Kapoor has relied on the Supreme Court decision reported in 1977 ELT (J61) and also on this Tribunal s Order No. 620-621/87-C. The Hon ble Supreme Court in that case held that where the duty-paid pig iron was mixed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for refund claim, the contention of the appellants is that under the S.R.P., the assessment remains provisional till the RT-12 Return is finalised by the Central Excise Officer and the time limit under Section 11 -B should count from the date of finalisation of the RT-12 Return. In support of this contention, Shri Kapoor has relied on two decisions of this Tribunal, viz., those reported in 1985 (22) ELT 795 (Tribunal) and 1986 (25) ELT 994 (Tribunal). The case reported in 1985 (22) ELT 795 (Tribunal) was decided by the 3-Member Special Bench of the Tribunal on 22.11.1984. In paragraph 18 of that decision the Tribunal stated that The decisions in the Bawa Potteries case as well as in the Triveni Steel Glass Works case make it clear that the time-limit under Rule 10 would run from the date of assessment by the Central Excise authorities on the RT-12 Return. The decisions of Delhi High Court in Bawa Potteries case and Triveni Steel Glass Works case are reported in 1981 ELT 114 (Delhi) and 1983 ELT 711 (Delhi). The case of Shri Digvijay Cement Co. Ltd. v. Collector of Central Excise, Baroda (Supra) was decided on 7.2.1986 by Single Member sitting in West Regional Bench. It was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,15 and 16 of the order :- 14. The recent history of Rules 173B and 173C also indicates that the intention of the Rule making authority is not to treat an approved classification list or a price list as provisional. Prior to 7.2.1981 both the Rules provided for two courses of action as open to an assessee who disagrees with a decision of the proper officer in respect of the rate of duty or valuation; payment of duty under protest or by having the goods assessed provisionally in terms of Rule 9B. The latter choice was omitted from the date thus indicating a deliberate action on the part of the Rule making authority that the decisions under Rules 173B and 173C are final and if the assessee so wished, he will have to resort to the procedures of payment of duty under protest of filling a refund claim for going in appeal against the decisions given under the Rules, if so desired. 15. In the above view of the matter we consider that collection of duty under the Self Assessment Procedure under Chapter VII-A is not by way of provisional assessment nor is the payment made provisional. 16. If one were to look at the provisions of Rule 173C(8), the above view would get further strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he payment or the adjustment that was earlier made was done not under any final order of assessment..... Next he referred to the case of Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd. -1978 ELT 416 (paras 21 22). In para 22 of the Judgment the Supreme Court has observed, But we could not equate such an adjustment with an assessment, a quasi-judicial process which involves due application of mind to the facts as well as to the requirements of law, unless we were bound by law give such an unusual interpretation to the term assessment". Here we do not find any such definition of assessment or any compelling reason to hold that what could at most be a mechanical provisional collection, which would become a levy in the eye of law only after an assessment , was itself a levy or an assessment." He referred to the framing of Section 11 B as compared with the wording of Rule 11 which deal with claims for refund prior to 17.11.1980. In the explanation to Rule 11 it was provided Where any duty is paid provisionally under these rules on the basis of the value or the rate of duty, the period of limitation will run from the date of fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e process of assessment itself. 19. The observations of the Calcutta High Court in the case of Krishna Lal Thirani Company Ltd. and Another v. Collector of Central Excise and Others, reported in 1978 ELT (568), are also distinguishable on the above lines. 20. The observations of the Supreme Court in the case of Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd. 1978 ELT 416, referred to by the Advocate for the appellant deals with an entirely different situation. That was a case where a debit was made to the PLA without any assessment and the question was whether such a debit which was a mechanical process would constitute a levy. As we have observed in the preceding paragraphs the debit made to the PLA in the present case is the result of a deliberate act on the part of the assessee after conforming to the provisions of Chapter VII-A in the course of which formal and quasi-judicial determinations have been made by proper officers, both in respect of the rate of duty applicable and the unit value of the excisable goods." 9. In passing the impugned order, the Collector of Central Excise (Appeals) relied upon a decision dated 6.5.1983 of Tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the proper Central Excise Officer. In our view, the assessment is complete as soon as the classification list under Rule 173-B and price list under Rule 173-C are approved by the proper central excise officer. Based on the classification and the unit value of the goods approved by the proper central excise officer, in the classification list and the price list, the assessee determines the duty liability on the goods under Rule 173-F of the Central Excise Rules and then pays the duty by debit to the account current maintained by him under Rule 173-G before the goods are cleared from the factory. The assessment and the payment of duty are, thus, complete before the goods are cleared. The assessment by the Proper Officer of Central Excise on the RT-12 Return filed by the assessee under Rule 173-I is nothing but arithmetical check of the quantification of the duty by the assessee on the basis of already approved classification list and price-list. We do not subscribe to the view that the assessment under S.R.P. prior to the approval of RT-12 Return by the Proper Officer is provisional. In this view of the matter, the provision of Explanation (B)(e) below Section 11 -B of the Act is n ..... 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