9911796707
TMI Blog2002 (1) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... higher rate applicable to non-levy sugar and stored such duty paid stock in a rented godown. Subsequently, upon receipt of release orders from State Governmental authorities for release of levy sugar, the appellants supplied part of the duty paid sugar stored in the godown as levy sugar between June and July, 1997. Since levy sugar was liable to duty at a lower rate and as the appellants had already paid duty at the higher rate applicable to non-levy sugar in respect of the sugar supplied subsequently as levy sugar, they claimed refund of the excess duty paid. Part of the refund claim was allowed and the remaining rejected by the adjudicating authority on the ground of time bar prescribed for refund claims under Section 11B of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Limited, Commissioner of Central Excise, Meerut - 1998 (100) E.L.T. 541 (T) and the judgment of the Supreme Court in the case of Union of India v. Punjab Sugar Mills - 1999 (109) E.L.T. 17 (S.C.), in support of the submission that levy sugar should be assessed at rate applicable to it and not at rates applicable to non-levy sugar. An alternate submission made during the hearing of the case is that the original assessment and payment of duty at the time of removal of the goods from the sugar factory could be treated only as provisional payment, and upon release of the sugar as levy sugar, the consignments in question must be reclassified as levy sugar, correct duty assessed and the differential duty, if any, recovered or refunded. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that time limit for filing refund claims, as contained in Section 11B of the Central Excise Act, is mandatory and no relaxation could be allowed. He also submitted that there was no merit in the appellants submission that Section 11B(5)(B)(ea) is attracted to the present case as the dispute did not relate to a special order of exemption issued under Section 5A(2). 4. Section 11B(5)(B)(ea) of Central Excise Act, 1944 reads as under :- in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of Section 5(A) the date of issue of such order . It is obvious that the above provision relates to exemptions from payment of duty by a special order issued under sub-section 2 of Section 5(A). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if the duty provisionally assessed falls short of, or is in excess of the duty finally assessed, the [assessee] shall pay the deficiency or be entitled to a refund, as the case may be [Rule 9B(5)]. The appellants claim for treatment of the duty originally paid as provisional is on the basis that the real character of the sugar sold by him would be known only when the Governmental authorities issued Release Orders. These orders being statutory orders under the Essential Commodities Act, 1955 are binding on all parties and any demand of duty without regard to the real character of the sale and the sale price would play havoc with the system of sugar distribution in the country. This is particularly so, since classification of sugar and rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary to this scheme would wreak the system and spread unintended hardships all around. It is to be avoided. Ordinarily there could be no controversy on the proposition that sugar sold as levy sugar under the Essential Commodities Act should be taxed only at the rate applicable to that sugar and not at the rate applicable to non-levy sugar. In the present case, it is clear that at the time of removal of the sugar from the factory, the real character of the sugar was not known as levy sugar release orders were issued only subsequently. Classification of the sugar and rate of duty depend on the release order. This was the appellants difficulty at the time of transfer of the goods from the factory to the godown. The appellants paid duty at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously be only provisional. The dictum contained in the Supreme Court s decision in Punjab Sugar Mills case and the decisions of this Tribunal in the case of Somaiya Sugar Works and U.P. Sugar Corporations is also to the effect that levy sugar should be assessed to duty only at the rate applicable to such sugar. In the present case, it is, therefore, necessary that the payment of duty originally made be treated as provisional payments, assessments finalised based on the classification applicable to levy sugar and refund of the duty paid in excess made to the appellants. We order so. 8. We may hasten to add that the view we have taken in this case is not at variance with the decision of this Tribunal in the case of A. Infrastructure Ltd. t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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