9911796707
TMI Blog1984 (7) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11-B to the facts of this instant case, when the Appellate Collector has set aside the order-in-original solely on the ground that only Section 11-B and not the then rule 11 applies to the facts of this case? (ii) Whether Section 11-B which came into effect from 17-11-1980 can be applied retrospectively for the payments made since 5-2-1973, when the old rule 11 (prior to 6-8-1977) was in force for the relevant period ? (iii) Whether the protest made in general terms in the absence of specific reason/grievance can be recognised as a valid protest for the pourpose of saving limitation to claim refund ? (iv) Whether the protest made on one score i.e. valuation purpose, can be said to apply for the classification purpose also, in spite of the fact that at the material time the respondent did not pay duty under protest specifically with regard to the classification dispute? (v) Whether the interpretation placed by the Tribunal on the words '... reserving our rights of claim for the excess amount of duty paid by us in any manner' appearing in the respondent's letter dated 14-3-1973 as covering the classification dispute also, is tenable in law? (vi) The respondent's letter dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately, held on 26th September, 1980 by the Government of India, in Revision, that the Respondent was entitled to the refund of duties paid in excess upto a period of one year prior to the date of filing the application for refund; (iv) accordingly, the refund payable in terms of the order of the Government of India was, in fact, paid to the Respondent; (c) the Respondent thereafter applied on 23-12-80 for refund of ₹ 13,96,582.23 for the period between 5-2-1973 and 17-3-1976. In the course of the application for refund the Respondent relied upon the aforesaid order of the Govt. of India dated 26-9-1980 and submitted that the Respondent was entitled to refund pursuant thereto since the payment of duty during the period in question was under protest; (b) in adjudication the Asstt. Collector held, inter alia, that- (i) the claim related to a period when the old Rule 11 of the Central Excise Rules was in operative force; (ii) in terms of the said Rule, a refund of duties erroneously paid was barred unless the claim was preferred within three months from the date of payment of such duty; (iii) there was nothing in the said Rule to save the claim from the albre-said bar of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -D(2), rather than l-D(l) (a), no question of determination of rate of duty survives to be decided in the instant proceedings for refund; (c) accordingly, questions (i) to (iv) proposed by the Collector of Central Excise arise on the order of the Tribunal in appeal and require to be referred to the High Court. 6. Shri Daya Sagar, learned Consultant for the Respondent, in his reply, relied strongly on the aforesaid order of the Tribunal in the case of Union Carbide (India) Limited v. Collector of Customs, Calcutta and urged that - (a) the instant proceedings for refund did involve the determination of a question having a relation to the rate of duty of excise in that- (i) during the material time i.e. 5-2-1973 to 17-3-1976, Item 1-D of the First Schedule to the Act prescribed the levy of duty at 20% ad valorem upon aerated waters in the manufacture whether or not flavoured; (ii) however, by virtue of the Notification No. 30/72, dated 17th March, 1972 the effective rate of duty was reduced to 10% ad valorem provided that no blended flavouring concentrates in any form are used in the manufacture of aerated waters in question; (iii) the reference to the said Notification bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to duty, not-with- standing that there was no question whatsoever of the applicability or the construction of the Notification to the goods in question? (c) Does a mere determination of the question of limitation imply a determination of the rate of duty, although the case for refund did neither raise nor involve any such question? e. (a) (i) All that appears to have been stated in the application for refund was, as already stated, that the Government of India had decided in the Respondent's favour that their products did not contain blended flavouring concentrates, implying, thereby, that their product was assessable as such. There was nothing in the application indicating the applicable rate of duty or inviting the determination of a question in relation thereto. It is assumed that the applicable rate of duty was not in doubt or dispute once it had been held categorically that the products did not contain blended flavouring concentrates. There was no reference to Notification No. 30/72 at all. (ii) Nor was any question having a relation to the rate of duty required or arise to be determined in the proceedings pursuant to the application for refund. There was no necessity f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, relating to the determination of any question having a relation to the rate of duty, was made, just because, in appeal, it was heard by a Special Bench of this Tribunal. (iv) Nor does the mere determination of a question of limitation imply the determination of the rate of duty as contended for the Respondent. It is not difficult to conceive of cases which do involve a question of limitation but still do not require that the rate of duty or any question in relation to it should be also determined. (v) In the premises, it is to be held. in the facts and circumstances of this case, that no question having a relation to the rate of duty was either required to be determined or determined as an issue and consequently a Reference Application in the instant case is not ruled out in terms of Section 35G of the Act. 10. Taking up the first four questions that are sought to be referred seriatim, however, it would appear that - (a) (i) the first question impugnes the decision of the Tribunal in so far as the Tribunal had not, affirmatively, ruled on the applicability of Section 11B, in the facts and circumstances of the case. The second question puts in issue the applicability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show cause notice issued by the Central Government, it would appear that two letters dated 2-2-1973 and 14-3-1973 were relied upon by the Respondent to constitute protest. The second of the said letters categorically reserved Respondent's rights "of claim for the excess amount of duty paid by us in any manner". Construing the aforesaid letter the Tribunal held that it was clearly a protest with regard to the classification aspect in the case; (iii) construction of a document is always a question of law and accordingly questions 3 and 4 appear to arise from the order of the Tribunal for a reference. 11. The cross-objections filed for the Respondent do not propose any question of law to be referred to the High Court. On the contrary it would appear that Respondent desires reference of an alleged question of law to the Supreme Court. Such a cross-objection cannot maintain. 12. In the premises the Application for Reference is allowed in respect of the following questions: - (i) Whether, in the facts and circumstances of the case, the letters dated 2-2-1973 and 14-3-1973 can be construed to be a protest in terms of Section 11B of the Central Excises and Salt Act, 1944? ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
