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TMI Blog1990 (12) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Central Excise issued a show cause notice under Section 35A(2) of the Central Excises and Salt Act, 1944, seeking to review the Assistant Collector s order. The appellants approached the Rajasthan High Court and ultimately filed a special leave petition in the Supreme Court. The Hon ble Supreme Court on 27-7-1990 directed that the review show cause notice dated 7-6-1980 be transferred to this Tribunal for adjudication of the controversy involved. For the sake of completeness of the record we reproduce below the Supreme Court s order in Civil Appeal No. 601 of 1983 passed on 27-7-1990. Pursuant to our order dated July 20, 1990 the matter was further taken up and counsel are heard. It is admitted that the appeals against the orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecalculated taking into consideration that part of the concessional duty of Central Excise availed by the manufacturers and not passed on to the customers and (ii) whether for the purpose of calculating excess production (on which concessional rate is availed of, in terms of the notification) it is the adjusted value of the base clearance that should be taken into consideration or whether its actual value. 4. On the first issue, the ld. SDR Smt. Baliga submitted that the Tribunal has taken many decisions in favour of Revenue. She particularly pointed out the judgment of the Bombay High Court in Tata Engineering Locomotive Co. Ltd. v. Asstt. Collector of Central Excise [1990 (48) E.L.T. 182 (Bom.)]. In 1982, explanation to Section 4(4)(d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants then filed an appeal before the Collector (Appeals) but obtained a refund to the extent that, both sides agreed, was due to the appellants. The Appellate Collector having dismissed the appeal, they are now before us. 7. The learned Advocate submitted that 1975-76 was held to be the base period and there is no dispute about it. The dispute is only regarding the value in that the Assistant Collector took the actual value but the appellants plead that it is the adjusted value in terms of Notification No. 198/76 that should be considered. 8. Shri Khaitan further pleaded that the declaration of base clearance and period had to be approved by the Department and that in terms of the Delhi High Court judgment in Modi Rubber Ltd. (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Collector s order, now impugned before us. The learned Advocate referred to the doctrine of merger. 12. The learned SDR, opposing the arguments, submitted that the refund claim was time-barred as it was filed more than six months after the payment of duty. She supported the review order by the Collector, submitting that the Collector was acting in exercise of the powers conferred on him by the Central Excises Salt Act, 1944. She further argued that the base clearance should be taken at the unadjusted figure. 13. We have considered the arguments of both sides. On the second issue and consequent question the following points arise for a decision in this matter. (i) Who is to fix the base clearance; (ii) Should the base clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual clearance value and the appellants plea is that it should be the adjusted clearance value. The Delhi High Court in Modi Rubber Ltd. (supra) decided as follows, in paragraph 16 of its judgment. It was argued by Mr. Lokur for the respondents that paragraph 2(1)(b) was concerned with the determination of the base period and not of the base clearances. It is true that para 2(1) starts with the words for the purpose of determining the base period". But base period itself is determined only by the fixation of the base clearances. In fact, base period has no meaning except in relation to base clearances. The base is of clearance and not of any period. The base period simply means the period for which the clearance is to be taken as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination of the approval of the base period and base clearance. In Munibhai Co. (supra) the Tribunal took the view that refund claims made in respect of duty paid upto six months prior to the date of declaration would be within the date of declaration. In this judgment the Tribunal inter alia referred to the Madras High Court judgment in Carborandum Universal. In our opinion it would be correct to follow the ratio of the judgment of Madras High Court which is directly on the point. We hold that limitation should run from the date of determination of approval of base period and base clearance. We hold accordingly and direct that the refund claim should be disposed of, to the extent necessary, in the light of this finding. 14(iv). The last ..... X X X X Extracts X X X X X X X X Extracts X X X X
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