2004 (2) TMI 523

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..... facts are as under :- The appellants brought back to their factory certain finished goods which were previously cleared from their factory on payment of duty. It is an admitted position that, the duty which was initially paid was under provisional assessment basis. The appellants filed necessary intimations in Form D-3, which were verified by the concerned Central Excise officers in charge of the factory. It is admitted that the sheets in coil form were subjected to cutting to obtain cut lengths, which did not amount to manufacture. It is also admitted fact that no duty was required to be paid on the subsequent removals as the goods could be identified with those cleared previously on payment of duty. Since the payment was made again, the .....

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..... of payments under provisional assessment, starts from the date of final assessment. The appeals from the Revenue contests this finding, especially the retrospectivity aspect. 5. I have examined the rival contentions. In the order-in-original, the claims were rejected on two grounds, one of which was limitation while the other ground was that the goods have been brought back in contravention of Rule 173H. It is also stated that, the rejected goods could be brought back to the factory, only after obtaining the permission of the Chief Commissioner. It is further stated that, it was not clear as to whether the return of goods was under Rule 173H or 173L and the D3 intimation was misleading. It was further concluded that, the refund claim does .....

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..... s are themselves admitting that, the returned goods were duty paid and on their re-issue, no duty could be collected/payable, though paid. Even if, as alleged, the act of entry of duty paid goods has resulted into violation of the provision of either Rule 51A or 173H, such violation at best may invite penal consequences. Since the re-issued goods have been identified as being the same goods which were cleared previously on payment of appropriate duty, the subsequent clearance cannot be subjected to any duty there being admittedly no manufacture. Hence the payment of duty made on the date of re-issue of returned goods is refundable. 8. However, the claim of the respondents before the original authority was in respect of the amount paid at .....

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