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TMI Blog1989 (8) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... of bolts and nuts. 3. The total value of the excisable goods cleared by the. appellant during the preceding financial year ending 31-3-1983 being far less than Rs. 25 lakhs, the appellant was entitled to clear bolts and nuts without payment of any duty upto the value of Rs. 75 lakhs during the financial year ending 31-3-1984. 4. The appellant in accordance with the provision of Rule 173B(1) filed a classification list effective from 1-4-1983. In the said list the appellant declared its products and claimed the exemption of duty under Notification No. 83/83, dated 1-3-1983 during the financial year ending 31-3-1984. The proper Central Excise Officer after due verification of the declaration approved the list on 19-8-1983 without any modification. 5. The appellant manufactured and cleared bolts and nuts in the month of January 1984 without payment of duty in accordance with the approved classification list. In the month of February, 1984, the appellant did not clear any goods from its factory. But on 14-3-1984 it cleared from its factory 6875 kgs. of bolts and nuts valued at Rs. 65.600/- under Gate Pass No. 10. The appellant inadvertently paid duty on the said consignment of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunication of the order. 14. It was also their submission that according to the prevalent practice also, the Superintendent used to allow credit or debit in the PLA in case of over-payment and under payment. 15. In support of his contentions, he has filed two sets of RT12s - in one, the Superintendent has by way of his order dated 10-10-1980 indicated the short payment of duty and in another by way of order dated 24-3-1983, he has indicated the excess payment and in the latter case he has allowed the assessee to take credit and no appeal has been filed by the department against these orders and these have been duly complied with by them. 16. He would also like to cite the case otDigvijay Cement Company Limited v. Collector of Central Excise, Baroda [1986 (25) E.L.T. 994 (Tribunal)] in support of his contention that the date of completion of RT12 by the Superintendent constitutes the date of finalisation of the assessment and, therefore, the relevant date for the purpose of claiming refund. 17. The learned SDR stated that the provisions of the Section 11B have to be kept in view and the relevant date in terms of this provision is the date of payment of duty by debiting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Government of India, Ministry of Law, Justice Company Affairs, 1979 at page 227, the phrases Save as otherwise provided and Save as otherwise prescribed have been explained : (1) Save as otherwise expressly provided : except when otherwise expressly provided [Section 12(1) Contempt of Courts Act] and (2) Save as otherwise prescribed": except when otherwise prescribed [Or. 21, R.65, C.P.C.]. 25. They have also found that the law lexicon 1987 edition by P. Ramnath Aiyer also mentions, inter alia, that a Saving Clause is an exception of a Special thing out of general thing mentioned in a statute. Otherwise , by either like means, contrarily, different from that which relates, in a different manner, in another way, in any other way, differently in other respects, in other respects, in some other like capacity. They would also like to draw attention to the Supreme Court judgment in the case of Indramani v. W.R. Natu reported in AIR 1963 SC 274. They would draw attention to Para 15 where the expression by the Act under the Act have been discussed. They are filing a photocopy of the judgment which may be taken on record. The learned Counsel further stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications which are required to be filed in terms of Section 11B which provides for a time period of six months from the relevant date and the relevant date has been indicated as the date of payment of duty and not the date of completion of the RT12. In this connection, he would like to draw attention to the differing provisions in Section 11A and Section 11B because in demand cases the date of filing the return RT12 is also one of the relevant dates but this is not the position in case of refund. 31. The learned SDR further stated that he would like to emphasise in particular the language of Clause (1). He would also like to submit that sub-clause (4) is independent and is a different provision and it is noteworthy that the time limit has been indicated only in the Clause (1) and not in the other clauses, and the cases where the time limit can be relaxed have been indicated in the proviso to Clause (1). Therefore, insofar as the question of time period is concerned it is Clause (1) read with its proviso which is required to be applied and even in sub-clause (4) the emphasis is on the fact that no claim would be otherwise entertained. 32. It was also his alternative submission t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut incorrect payment of a sum in excess of the amount assessed and is, therefore, merely in the nature of an error apparent on the part of the assessee, which was simply required to be rectified. 38. In the circumstances, the Superintendent was fully within his competence to allow credit of the amount due in the PLA as soon as he noticed this mistake (or the mistake was brought to his notice). 39. In fact, the Superintendent was duty bound to allow this adjustment in terms of Rule 173I and has failed in his duty in not allowing such adjustment. 40. The learned SDR is of course right in pointing out that it was the job of the Superintendent to follow the order of the Assistant Collector but then the order subsisting at that time was the order of approval of classification list allowing exemption and, therefore, in pursuance thereof, the Superintendent was required to assess the duty correctly and allow the consequential adjustment. 41. Further, the Superintendent has clearly erred in advising the appellant to file a refund application to the Assistant Collector as no such application was called for in the circumstances of the case and adjustment could be ordered by him strai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned SDR has drawn our attention to Caluse (1) of Section 11B and pleaded that the time limit provided therein applies to all the clauses; And where the time limit can be relaxed have also been indicated in the proviso to Clause (1). He has emphasised that Clause (1) has to be read with clause (4). While we agree that a section has to be read as a whole, we find that in this particular case, clause (4) is an excluding clause, i.e. it indicates as to what is or will be outside the purview and therefore whatever goes out of the purview of Section 11 B by virtue of this clause, goes out of purview of clause (1) and the time limit prescribed therein. 46. We are also unable to agree with the contention of the learned SDR to the effect that the date of payment to the Government by adjustment or debit in PLA is the relevant date for purpose of calculating the lime bar under Section 11B, inasmuch as there is no provision to this effect under Section 11B. The learned SDR here is merely lifting the words mentioned in Section 11A, and applying them l.o 11B. But this cannot be allowed. Provisions of Section 11 A and U B are distinct provisions and each one must be followed in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case is with reference to distinct provisions of Section 11B and 173I, and, therefore, distinguishable. 49. The learned SDR has also referred to the case of Meteur Chemicals Industries Ltd. - 1986 (26) E.L.T. 756 Tribunal (SRB). However, with due respect to the views expressed by our Brothers in SRB, we would like to mention that in our view the assessment by proper officer under Rule 173I cannot be equated with the work of the computist in the Customs, as under Rule 173I, the officer has to apply his own mind and is required to complete the assessment after such further enquiry as may be considered necessary. It is noteworthy that this rule directs the provision to assess the duty" and not merely to compute the same although computation is (also) naturally involved and is indeed necessary to conclude the process. 50. We also hold that adjustment was not assessment but it was our opinion that it was consequential to completion of assessment and this completion by the Superintendent is the tail end of the process of assessment which was spread over, distinct, self-contained stages beginning with the approval of classification list by Assistant Collector and ending with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to such declared goods in any rule under this Chapter, apply. Explanation :- The expression declared excisable goods , wherever it occurs, in this Chapter means the goods declared under this proviso." 54. Therefore, Rule 9 has to be read along with provisions of Chapter VIIA and not in isolation and has to be interpreted and applied in the context of changes introduced by Chapter VIIA and in the event of conflict, provisions of Chapter VIIA must prevail (in respect of items to which it is applicable). Therefore, Rule 9 must be read with 173B, 173C, 173C(c) and 173f and when so read in view of the provisions of Rule 173C(c) and (f) towards which we have already drawn attention, the word duty used in Rule 9 can only be taken to refer to the deemed duty determined by the assessee under 173f in cases covered by SRP. Actually, in such cases, it can in no circumstances be assessed duty as under the provisions of Chapter VIIA assessment by the proper officer follows clearance and does not precede it (as used to happen in the days of physical control and is now confined to the few items still left under that system). 55. The fact that the old concept of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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