9911796707
TMI Blog1997 (3) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... quent to the approval of the price lists by the Assistant Collector in terms of the Order-in-Original, the RT 12 returns filed by the appellants herein during the period of pendenty of approval of price lists from March, 1983 to February, 1986 were assessed by the Range Superintendent concerned. In the assessment memorandum of each RT 12 return, the Range Superintendent showed the excess amount of duty paid by the appellants for each of those months. However, he directed that for claiming the refund of the said amount, the appellants should file formal refund claims to the Assistant Collector in terms of Section 11B of the Central Excises and Salt Act, 1944, who is the competent Officer to sanction refund of duty paid in excess. 1.2 Since the RT 12 returns are assessed by the Superintendent in terms of Rule 173-I of the Central Excise Rules, 1944, the appellants on their understanding of the said rule took suo motu the credit of excess duty shown by the Superintendent on each of the returns. That amount comes to Rs. 7,68,245.49 in respect of Appeal E/66/87 and Rs. 14,650.60 in respect of Appeal E/67/87. 1.3 Simultaneously, they filed appeals to the Collector (Appeals) against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. (2) The duty determined and paid by the assessee under Rule 173F shall be adjusted against the duty assessed by the proper officer under sub-rule (1) and where the duty so assessed is more than the duty determined and paid by the assessee, the assessee shall pay the deficiency by making a debit in the account-current within ten days of receipt of copy of the return from the proper officer and where such duty is less, the assessee shall take credit in the account-current for the excess on receipt of the assessment order in the copy of the return duly countersigned by a Superintendent of Central Excise. 2.2 Learned Advocate further submits that this very issue was examined by the Tribunal in two cases, namely :- (1) Collector of Central Excise v. Simplex Mills Co. Ltd. [1989 (44) E.L.T. 259 (Tribunal)]. (2) Balaji Fasteners v. Collector of Central Excise [1990 (46) E.L.T. 543 (Tribunal)]. 2.3 In this connection, he draws attention to para-6 of Simplex Mills case and paras-43, 56 and 57 of Balaji Fasteners case. The same are reproduced below :- Simplex Mills 6. We have carefully considered the submission of both sides. Rule 173-I of the Central Excise Rules pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meanings of the expression By the Act and under the Act have been clearly stated and we are in respectful agreement with the same. *** 56. We are not labouring this point further as we have already shown that in this particular case Section 11B is not attracted at all and the matter is required to be considered and decided in terms of Rule 173-I itself. 57. To sum up, the present case merely boils down to a question of implementation of the initial order of the Assistant Collector approving the classification list allowing benefit of exemption Notification No. 83/83. Since the amount in question was inadvertently paid in excess of the amount assessed as duty, therefore, it was payable by adjustment by the Superintendent in terms of Rule 173-I. No refund application was called for and no question of time bar arises in the circumstances and the departmental authorities action is misconceived and the authorities below have erred in passing the impugned orders. 2.4 Learned Advocate, therefore, submits that Appeal Nos. E/66/87 and E/67/87 need to be allowed striking down the endorsement by the Superintendent on RT 12 returns to the effect that the appellants should file sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to approve the classification list or price list, which are required to be submitted by the assessee under Rules 173B and 173C of the Central Excise Rules. Hence, the scope of any enquiry contemplated under Rule 173-I, by the proper officer could not extend to enquiries concerning valuation or classification. The scheme of SRP also contemplates that once classification list and the price list are approved by the Asstt. Collector, the assessee is to determine the duty payable on the basis of the approved classification/price lists. The nature and scope of enquiry, which the assessing officer, viz. Supdt. can carry out would fall within the restricted sphere - as to whether there had been any excess payment or short payment on account of arithmetical/clerical errors or on account of double payment of duty on the same goods by mistake or removal of goods on GP, without debiting in the PLA or excess debit in PLA. The scope of this enquiry cannot extend to such areas as revision of assessable value or denial of exemption or demanding duty at a higher rate than that approved by the Asstt. Collector and vice versa allowing assessment at a lower rate than that approved by the Asstt.Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, could fall within the purview of the Supdt. s enquiry for giving credit, because it does not involve in determination of the rate of duty or revision of assessable value. It involves only in finding out whether there is double payment and there is a cancellation of GP. Hence, while upholding the orders of the authorities below in all other cases, we would deem it proper to direct the Supdt. to go into the question of excess payment on account of double payment of duty under GP Nos. 617 and 620 for the same goods and if the Supdt. finds that the excess payment is on account of double payment and cancellation of GP suitable credit may be given in the PLA. [Emphasis supplied] 3.2 The learned SDR, therefore, submits that the two appeals E/66/87 and E/67/87 deserve to be set aside. As regards the other two appeals, he submits that since the refund claims have been filed by the appellants well beyond the period of six months after the date of endorsement by the Superintendent on RT 12 returns, (consequent to passing of the impugned order dated 10-3-1987), these claims have also been rightly rejected as barred by time. He submits that the other set of appeals, therefore, deserves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 10 of the said report, excess duty was found to have been paid because of the change in the approved assessable value. This is apparent from the following observation in para-10 of the said report :- From the details subsequently made available before the Collector (Appeals), it is observed that these excess payment have arisen on account of different valuation of the goods covered by various gate passes. This would involve in (sic) a determination of the correct value in respect of the goods cleared and revision of the assessable value. The assessing officer cannot perform the function of approving or revising the value which is not a mere arithmetical/clerical mistake. The appellants ought to have filed a refund claim giving all the details and the correct value to be applied and the reasons for excess payment. 4.3 I am further of the view that there is no distinction in the ratio of Buckau Wolf India Ltd. and Balaji Fasteners or Simplex Mill s judgments. The over all reading of the judgments of Balaji Fasteners and Simplex Mills Co. Ltd. indicate that no separate refund applications were required in terms of Section 11B of the Central Excises and Salt Act, 1944 when it w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
