9911796707
TMI Blog1990 (7) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) (iv): Considering that grounds (iii) (iv) are only rewording of the basic stand of the appellants as contained in the appeal we do not find it necessary, in the interests of justice to allow addition of these grounds. We also note that in ground No. (iv) the appellants say that the Madhya Pradesh High Court set aside the original assessment made for the period 1970-74, but a perusal of the Photostat copy of the order filed by the appellants shows that the High Court set aside the assessments from 1-3-1970 to 31-1-1972 only. (v) Ground No. (v): We however, allow ground No. (v) to be added as it is a general plea. 2. We further observe that on 9-3-1990 when the matter was heard the Bench directed the appellants to file a copy of the order dated 30-10-1975 in appeal dated 28-10-1975 and documents D-1, D-2 and D-3 referred to in para 22 of the order dated 30-7-1976 of the Madhya Pradesh High Court in the miscellaneous application No. 126/72. The appellants while complying with the direction by filing the appellate order dated 30-10-1975 and price lists dated 14-4-1971, 3-7-1971 and October 71 also filed a letter dated 29-7-1972 from their Advocate. The filing of the last ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Collector of Central Excise saying that Coca Cola and Fanta Orange were eligible for assessment at a lower rate of excise duty as they did not contain blended flavouring concentrates and seeking consequential refund. They say that on 5-12-1979 they reminded the Assistant Collector to finalise the pending assessments. However, the Asstt. Collector s order dated 31-12-1979 does not contain any reference to this aspect (of reclassification) as per the copy of a letter dated 2-2-1980 (filed by the appellants in the paper book, page 99). The Assistant Collector informed the appellants that the appellants letter dated 5-12-1979 was not available at the time of adjudication and saying that as the order passed is appealable you may please adduce your evidence at the appeal stage. 6. On 20-7-1984 (9-8-1984) the Collector (Appeals) passed the impugned order upholding the predetermination of the value and, while observing that the claim for reclassification was an extraneous matter, holding that the refund claim was filed beyond the period of limitation. Hence this appeal. 7. Shri Narasimhan, the learned Advocate for the appellants argued that (i) as the Madhya Pradesh High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e certain judgments of the Supreme Court were referred. She submitted that the Assistant Collector should not have gone beyond the period of 1972 as ordered by the High Court and in having considered the period 1972 to 1974 the said Officer was already in error. She justified the recalculation of assessable value submitting that as the amount of refund was an extra accrual it no more represented the excise duty paid by the appellants. 9. In his rejoinder Shri Narasimhan reiterated that the assessment had to be composite even though the High Court remanded the matter with directions. He pointed out that the Assistant Collector already went beyond the High Court s directions. 10. We have considered the submissions of both sides. One of the submissions made by the learned Advocate, that the Assistant Collector did not pass any orders on merits in so far as the question of classification was concerned, is correct. The Appellate Collector also disposed of the question by first observing that it was an extraneous matter and then giving a finding that the refund application was in any event time barred. However, it was not the plea of the appellant that the matter should go back for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question of freight and the matter had nothing to do with classification. 14. The appellants referred to Supreme Court s judgment in A.K. Roy and Another (supra, paragraph 20). We have carefully perused this judgment and the particular paragraph. The substance of this paragraph is that the price has to be fixed for delivery at the factory gate thereby eliminating the interest, freight, octroi and other charges. It does not support the appellants pleas. 15. In Bombay Tyres International (supra) in paragraph 49 and 50 the Supreme Court was examining the question of deductions in respect of sale of goods at a place other than factory gate. This judgment does not in any way advance the arguments of the appellants. 16. In Electric Lamp Manufacturers (India) P. Ltd. (supra, also cited by the appellants) the Calcutta High Court, inter alia, noted that the Supreme Court was pleased to hold that even though there may be a single order of assessment, the assessments can be split up and dissected and the items of sale separated and taxed for different periods severing illegal part of the assessments. We reproduce paragraphs 38, 39 and 40 of the judgment to make this record complete. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants had to be given the refund on account of classification for the period 1-3-1970 to 31-12-1974. 19. The next question to be decided is whether the Assistant Collector was correct in granting a reduced amount of refund as a consequence of adding the refunded duty to the assessable value. In the impugned order the Collector (Appeals) disposed of this ground as follows: As regards the issue in hand, in view of the Explanation appended below sub-clause (d)(ii) of Clause 4 of Section 4 of the Central Excises and Salt Act, 1944, the deduction on account of duty is permissible only to the extent of the effective duty of excise payable and nothing more than that. The said Explanation" was specifically made effective retrospectively. The period of assessment in question in this case is 1-3-1970 to 31-12-1974. The said Explanation was inserted with the saving clause, which protects: Any action taken or done .... at any time during the period commencing on the 1st day of October 1975 and ending with the 27th day of February, 1982.... Now, in this case the re-determination of assessable value was done in 1979, that is, during the period which falls within the said savings claus ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
