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TMI Blog1990 (3) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... ist on the basis of the tender prices, which are subject to price variation clause. The price lists were initially filed on this basis and duties were paid accordinaly on the basis of this price. Subsequently, when the prices were revised, based on the tender prices worked out on the basis of index of IEEMA, they have submitted revised price lists and wherever the final prices are on the higher side they have debited the differential duty in the PLA and where, however the prices were on the lower side as compared to the original prices approved, they have requested the Supdt. to allow them to take credit in the PLA. The Supdt. however, advised the appellants to file the regular claim before the Asstt. Collector and when such a claim was filed by the appellants on 11-6-1987, it was held by the Asstt. Collector that the duty had not been paid under protest and the claim for refund has been filed after a period of six months from the payment of duty and hence the Asstt. Collector rejected the claims as time-barred. Appeals filed against the order of the Asstt. Collector before the Collector (Appeals) also were rejected by the Collector (Appeals). The present appeals are against the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the price was not subject to Price Control Order, the facts of that case more or less are identical to the facts of the present case of the appellants. The ships were constructed and sold in terms of the contract subject to price variation clause. The Special Bench has held that only when the prices are determined in the arbitation proceedings, the cause of action for demanding the differential duty would arise and on that ground they have quashed the show cause notice issued by the Department. He, therefore, contended that in view of the aforesaid judgments in favour of the appellants, the authorities below could not reject their claims for refund computing the limitation from the date of payment of duty but they should have adopted the date of approval of final price by the proper officer. 4. Shri Mondal, on the other hand, contended that it is a settled law that as per the provisions of Sec. 11B of the Central Excises & Salt Act, 1944, the Departmental authorities are to function within the parameters laid down by the statute and any duty which is claimed as refund in terms of Sec. 11B has to be preferred within the period of six months from the relevant date, which, in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally, the date of adjustment of duty after the final assessments thereof. A careful reading of the relevant date envisaged under clause (B) in relation to the provisional assessment indicates that the duty of excise is paid provisionally under this Act or the Rules made thereunder. Only when a provisional assessment is made either under this Act or the Rules made thereunder, the relevant date becomes the date of adjustment of duty after final assessment thereof. The relevant date does not get altered merely because there is an endorsement on the price list that it is subject to price variation clause or a classification list is endorsed as provisional subject to chemical test. The law itself provides for the provisional assessment in such contingencies. In the case of goods which are subject to removal under Self Removal Procedure Scheme, Rule 173B contemplates filing of the classification list and where the assessee disputes the rate of duty approved by the proper officer, the assessee may after giving intimation to that effect to such officer pay duty under protest at the rate approved by the officer. The same Rule also provides that if the proper officer is of the opinion that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the necessary documents and furnished full information for the assessment of duty, but the proper officer deems it necessary to make further enquiry (including the inquiry to satisfy himself about the due observance of the conditions imposed in respect of the goods after their removal) for assessing the duty, the proper officer may, either on a written request made by the assessee or on his own accord, direct that the duty leviable on such goods shall, pending the production of such documents or furnishing of such information or completion of such test or inquiry, be assessed provisionally at such rate or such value (which may not necessarily be the rate or price declared by the assessee), as may be indicated by him, if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such conditions as the proper officer deems fit, binding himself for payment of the difference between the amount of duty as provisionally assessed and as finally assessed." 8. From the above it can be seen that provisional assessment can be done at such rate of duty or such value (which may not be necessarily be the rate or price declared by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional assessment under Rule 9B. Subsequently, when the Supreme Court invalidated the Price Control Order, M/s. Premier Automobiles Ltd., Bombay sought to recover the differential prices and the Department raised demand in respect of the duty involved in the differential prices. The question of time-bar under Rule 10 was raised in the writ petition before the Bombay High Court, which was negatived by the Single Judge and the issue was taken before the Dvn. Bench, which upheld the decision of the Single Judge and held that in this case, the department is entitled to recover the differential duty on account of recovery of the additional amount consequent upon the Supreme Court striking down the Price Control Order. On carefully going through the judgment, we observe the following salient differences in the case before the Bombay High Court vis-a-vis the facts of the case in these appeals. Firstly, the Bombay High Court have taken the view that in that case the demand under Rule 10A is sustainable because of the fact that at the time of initial assessment, it can be construed as final based on the price indicated in the Price Control Order and no one can charge the price in exce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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