9911796707
TMI Blog1985 (2) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... The supplies were made on seven different occasions during the period from 15-12-1977 to 20-4-1979. The LDO so supplied was charged to basic excise duty (that is the duty payable under the First Schedule to the Central Excises and Salt Act, 1944 read with any notification in force) at ₹ 36.21 per K.L. at 15oC in terms of Central Excise Notification No. 349/77, dated 16-12-1977. The appellants had also filed a classification list for approval of this rate of duty and it was approved. The refund claim was made with reference to Rule 12 of the Central Excise Rules, 1944. 4. (i) At this stage, it is better to refer to certain Central Excise Notifications issued at different points of time having a bearing on the present dispute. In terms of Notification No. 11/49, dated 5-4-1949 issued under Rule 12 of the Central Excise Rules, the Central Government directed that rebate shall be allowed of the duty paid on all excisable goods exported as Ship s stores for consumption on board a vessel bound for any foreign port (other than the ports of Pondicherry, Karaikal and Mahe) provided that goods were in such quantities as the Customs Collector at the port of shipment might consider re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assistant Collector analysed the effect of the notifications referred to earlier and stated that in respect of such supplies, additional excise duty was payable at the concessional rates in terms of Notification No. 232/67, dated 9-10-1967. However, full rebate of basic excise duty in respect of duty paid supplies was available upto 15-12-1977. On 16-12-1977 supplies were exempted from additional excise duty but the rebate of basic excise duty under Rule 12 was reduced by the specified amounts referred to earlier. It was only from 23-8-1978 that full rebate of duty was admissible. On this reasoning, he held that, during the material period, the appellants were liable to pay the concessional rates of duty specified in Notification No. 349/77 even in respect of supplies made from bonded stocks to bunker ocean-going vessels. The claim was rejected. 6. Aggrieved with this order, the appellants took up the matter in appeal. The main contention before the Appellate Collector was that the subject supplies should be treated as covered by Central Excise, Rule 13 and not Rule 12. The Appellate Collector, in his order dated 4-3-1981, observed that, at the material time. Rule 13 did not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in respect of export of goods under Rule 13 from bond, duty was payable to the extent required to be paid in respect of export of goods under claim for rebate of duty in terms of Rule 12. This decision went against the appellants but Shri Bhave submitted that the decision was based on certain presumptions and assumptions, for example, Rules 12 and 13 were procedural and did not confer any substantive rights on the assessee. 10. In response to a query from Bench, Shri Bhave stated that no bond in terms of Rule 13 had been executed in respect of these supplies. But, he contended, this should not be deemed to be fatal to the claim since there was no dispute about the actual export of the goods. 11. Smt. Vijay Zutshi, on behalf of the respondent, submitted that the export in the present case was under Rule 12 and not 13. The requirements of Rule 13 had not been complied with such as execution of bond, etc. She stated that Rule 12 conferred discretion on the Collector to condone procedural deficiencies. Rule 13 did not do so and the non-execution of the bond had not been condoned. She did not make any submission on the Tribunal s Order No. 399/1984. 12. We have carefully cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal. Before us also, the appellants have not pressed for a remand of the proceedings to the lower authorities for a fresh determination, on this ground. We would only say that the Assistant Collector should not have referred to or relied upon any opinion of the Law Ministry without disclosing it to the appellants. 14. We observe from the impugned Order-in-Appeal that the Appellate Collector has gone on an entirely different line. He has observed that, at the material time, Rule 13 did not permit export of LDO and Furnace Oil as ship s stores without payment of duty. The precise reasoning for this conclusion is not very clear but it appears to be that, according to him, the facility of export from bond (without payment of duty) was not available insofar as the ship s stores were concerned whereas such export was as ship s stores permissible in terms of Rule 12. 15. There is little doubt that LDO/Furnace Oil supplied as ship s stores in the present appeal was from bonded stocks and not from duty paid stocks. If they were from duty-paid stocks, duty would have been levied and collected at the full applicable rates and, on export of the goods as ship s stores, rebate would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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