1. Appeal under Section 35B of the Central Excises and Salt Act, 1944 praying that in the circumstances stated therein, the Tribunal will be pleased to set aside the order of the Collector of Central Excise (Appeals), Madras dated 18-2-83 in C. No. V/33/7/82 and to order refund of duty paid by the appellant.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri V. Jogayya Sharma, Advocate for the appellant and upon hearing the arguments of Shri. S.K. Choudhury, Senior Departmental Representative for the respondent, the Tribunal makes the following order : 3. The appellant-company had filed a price list on 12-6-80, which was to take effect from 16-7-80 in respect of ceiling fans and regulators manufactured and cleared by them pending approval of this revised price list, which was showing a lower value than the one hitherto-before, the appellant continuing to pay duty on the basis of an earlier price list approved by the Department at a higher level. The lower price, as declared in the relevant price list was eventuully accepted by the Assistant Collector of Central Excise, Hyderabad-I Division by his letter C. No. V/33/18/23/81 (R), dated 4/14-4-81. The appellant filed two claims for refund of excess duty for the period 16-7-80 to 8-3-81.
By his order C. No. V/33/18/61/81. (R), dated 8-9-82 the Assistant Collector accepted the claim of the appellant for the period 13-9-80 to 31-12-80 but rejected it in respect of the rest of the periods, as barred under Section 11B of the Act. In appeal the Collector (Appeals) found that the appellant was entitled to refunds for the period 1-1-81 to 8-3-81 as well but confirmed the rejection of the claim for the period 16-7-80 to 12-9-80.
4. In the appeal before us, the advocate for the appellant claimed that the payment of duties from 16-7-80 was under protest. In the alternative, he urged that the assessment from 16-7-80 till 14-4-81 was on a provisional basis. In either case, the claim of the party is not hit by limitation under the provisions of Section 11B of the Act.
5. Though the plea was taken before the Collector (Appeals) as well, that authority did not accept that the payment was provisional, observing as follows : "Dealing with the first ground, I may observe that the reasons stated in their letter of 12-11-80 cannot be considered sufficient in themselves to hold that they had been paying duty under protest, in the absence of appropriate endorsement on G.P. Is, applications for Removal of R.T. 12s which are statutory documents since there is no showing that such endorsement as 'Duty paid under protest' has been made on such documents." We have given careful consideration to the letter KTC/2605/80, dated 12-11-80 from the appellant to the Asstt. Collector. It is useful to set it out in extenso : "The above price list is not approved and a show cause notice bearing No. V/33/17/33/80-VC, dated 16-10-80 was issued calling upon us, why the post-manufacturing expenses claimed by us should not be disallowed; and the price list approved accordingly. The matter is under consideration by your kind self. In the meanwhile, we are advised by your concerned officers to clear our goods under old approved price list. We are accordingly clearing the goods according to the old price list, though the invoices are being raised according to the new price list submitted in the reference cited.
As soon as the matter are settled, we will be entitled for refund of the excess differential duty paid. This is what is given to understand by your officers.
It is seen that there was no doubt in the minds of the appellant that he was entitled to assessment on the lower value. (Incidentally, at the bar it was mentioned that the reduction in price was occasioned by a slump in the electric fans' market and was in keeping with the reductions of a similar order made by other competitors in the field).
It is also seen from the underlined part of that letter that it was the understanding given by the officers of the Department. It is seen from the order of the Assistant Collector dated 8-9-82 that the appellant has also claimed that, "The refund claim dated 11-3-81 was returned to the assessee with the advice that it should re-submit the same after final approval of the price list through the jurisdictional Superintendent along with all relevant documents." an observation not repelled or contested by the Assistant Collector.
This action of the Assistant Collector in asking even what he found as a belated claim being returned for re-submission after final approval of the prices-which was done as late as 4/14-4-81-lends strength to the claim of the appellant contained in his letter dated 11-8-80 that they were given to understand that they will be entitled to refund of excess duty as soon as the price list is finalised. In the light of the above, we are satisfied that despite there being no endorsement on the gate passes or the R.T. 12s that assessment has been done provisionally; what has actually happened is provisional assessment and that too because of the inability or delay on the part of the department itself to finalise the price-list within a reasonable time and further giving an impression to the appellant that until that is finalised, he need not bother about filing a claim. In the light of this finding we do not traverse the other alternative argument of the advocate that the assessment in any case was provisional.
6. Accordingly, the appeal is allowed and the claim of the appellant for the period 16-7-80 to 12-9-80 will be treated as within time.