9911796707
TMI Blog1984 (11) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... ating oil in their factory at Calcutta. The appellants have cleared lubricating oil during 10-10-1975, 21-10-1975 and 31-10-1975 after payment of duty under the Central Excise Tariff Item 11-B. The appellants were not aware that no excise duty was leviable on the said blended or compounded lubricating oil which was processed out of duty paid blended or compounded lubricating oil. The appellants also rely on the trade notices issued by the Calcutta Collectorate dated 29-4-1974 and 29-4-1976. The appellants submitted their claim for refund of ₹ 7,953.59p. on 30-5-1977. The Assistant Collector of the Central Excise, Calcutta, by his order dated 29-12-1977, rejected their claim as barred by limitation under Rule 11 of Central Excise Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assification and the provisional assessment was in respect of valuation. He urged that there was no provision in the rule for computing the time-limit for claiming refund from the date of finalisation of the RT-12. 5. It is common case that tbc appellants have paid duty on 10-10-1975, 21-10-1975 and 31-10-1975 respectively. The quantum of the amount claimed as refund, namely, ₹ 7,953.59p. is also not questioned. The only point for determination would be whether the claim for refund made on 30-5-1977 was barred by limitation. On the facts of this case, we find from the RT-12 (Annexure-D) in the paper book filed by the appellants, the assessment was made provisionally. The endorsement reads that the duty on the goods cleared under Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made can it be said that duty on the goods has been paid in the manner required under the rules, and this date should be the relevant date for computing the time-limit. 7. In the present case, the finalisation of the duty took place on or about 5-3-1980. The limitation, according to the rule in force then, started running from that date. The application for refund having been filed anterior to the date of finalisation of the provisional assessment, it cannot be said to be hit by the limitation in Rule 11 as it stood on the date of finalisation of the provisional assessment. 8. Having regard to the facts of the case, it would not be unreasonable to say that the claim for refund in the present case, should be considered with referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Hence, on a careful consideration of the material placed before us, we are of the opinion that the refund claim made in this case was in time and the rejection of the claim by the authorities below cannot be justified. In the result, the impugned order is set aside and the appeal is allowed. The refund should be granted to the Respondents within three months from the date of issue of this order. [Order per Contra : H.R. Syiena, Member]. - M/s. Castrol claimed a refund of ₹ 7,953.59 on 30-5-77 on the ground that it paid duty at 20% ad valorem under Item 11-B erroneously instead of 1% under Item 68, and not, as claimed in its revision application dated 10-11-81 on the ground that no excise duty was leviable on the product viz. bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here having been according to him, provisional assessment. He replied that none was taken. The counsel for the department, however, agreed with Castrol s counsel when he said that the absence of a bond would not invalidate the provisional assessment. 15. Rule 9-B of the Central Excise Rules, 1944 provides for provisional assessment in certain stated circumstances. It also has a condition- if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such conditions as the proper officer deems fit, binding himself for payment of the difference between the amount of duty provisionally assessed and as finally assessed . The difference arises because there are two values or rates of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The period being December 73 to December 77, a demand on 5-3-80 was far out of time. The so-called provisional assessment was only a device of which the central excise officer thought he could neutralize the time-bar. We have seen many such cases in which no bond was taken, where no record is visible to tell us what the reason for the provisional assessment was or to tell us what was the sum of dispute, but which are presented as genuine unadulterated provisional assessments. I am not able to accept this was a provisional assessment even if the appellant is. To accept the officer s power to decree provisional assessment without even following the law would entrust powers in his hands which can be easily misused. 18. This brings me to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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