Decided on January 16,1991



K. Sankararaman, Member (T) - (1.) THIS batch of six appeals is being disposed of by this common order as they involve a common issue. These appeals have been filed by M/s. Art Plywood Industries Ltd., against the common order in appeal Nos. 110 to 115/ASM SE 35E/84 dated 20th November, 1984, passed by the Collector of Central Excise (Appeals), Calcutta, allowing six appeals filed before him by the Superintendent of Central Excise, Shillong on behalf of the Collector of Central Excise, Shillong, challenging six orders passed by the Assistant Collector of Central Excise, Digboi sanctioning refunds to the present appellants. The refund was held by the Assistant Collector to be admissible to them on account of reclassification of flush doors under the then applicable Tariff item 68 of the Central Excise Tariff as against the original classification under item 16B for the clearances effected after 1-3-1975 when the said item 68 was introduced. For the clearances effected before that date, the entire duty paid was refunded. The Assistant Collector had held in his orders that finalisation of assessment was not done till the party filed the refund claims and so the question of time limit did not arise. He, therefore, found the refund claims to be admissible and granted the refunds. The Collector (Appeals) set aside the said orders on appeal by the Department, holding that the fact that the price list were provisionally approved did not mean that the classification list also stood provisionally approved. The decision dated 17-3-1980 of Delhi High Court (holding that Flush doors are classifiable under item 68 and not under item 16B) cannot have any retrospective effect and as the refund claim was clearly time barred, the appeal of the Department was being allowed by him. He, therefore, quashed the order of the Assistant Collector. The present appeals are the offshoot of the said orders in appeal passed by the Collector (Appeals). The appeals arise from different orders in original relating to different periods during which the goods, flush doors had been cleared on payment of duty under item 16B.
(2.) In the appeals it has been urged that the Collector (Appeals) had failed to appreciate that their case was covered by Explanation (B)(e) of Section 11B of the Central Excises & Salt Act, whereby the relevant date in a case where duty had been paid provisionally is the date of adjustment of duty after the final assessment. They had paid duty on flush doors at all material times on provisional basis. The said provisional assessments were not finalized even till the passing of the Assistant Collector's orders dated 3-6-1983 which were challenged before the Collector (Appeals). The latter wrongly decided that because the provisional assessments were with reference to the price lists and not with reference to classification list, the provisions of Explanation B(e) to Section 11B will not apply. He also erred in holding that the decision of the Hon'ble Delhi High Court was not retrospective in effect. The Court decision, the S.L.P against which had been dismissed by the Hon'ble Supreme Court, simply declared what the law had all along been and hence the collection of duty on flush doors under item 16B was without jurisdiction. As the assessments were admittedly provisional, their right to refund cannot be denied on the ground that they had not filed any appeal against the classification order. Further the appeal by the department against the order of the Assistant Collector was filed after the expiry of the period of limitation and was liable to be dismissed in limine. Shri K.K. Banerjee, learned counsel for the appellants, argued their case during the hearing. He reiterated the submissions made in the appeal and stressed the fact that the finding of the Collector (Appeals) that the assessment of the goods was provisional only for the purpose of the price list and not for classification and hence the allowing of the refund claim by the Assistant Collector had been wrong was not based on correct position of law and facts. The assessment was provisional for all purposes and hence the time limit would be reckoned only from the date of finalisation of the provisional assessment. Viewing from that angle the Assistant Collector had correctly held that their claims were not barred by limitation and had accordingly allowed the same. He referred to the decision of the Special Bench of the Tribunal in Castrol Ltd. v. Collector of Central Excise reported in 1985 (20) ELT 102 and of the West Regional Bench of the Tribunal in Industrial Meters Ltd. and Ors. v. Collector of Central Excise reported in 1990 (50) ELT 101 (Tribunal) in support of his submissions.
(3.) SRI A. Choudhuri, learned departmental representative appeared for the respondent Collector. He opposed the arguments of the learned counsel and supported the impugned order. Provisional assessment is a conscious or deliberate act taken in accordance with the provisions of Rule 9B. The language of the bond to be executed for the purpose of provisional assessment is important. The proforma of B13 bond required for the purpose of provisional assessment contains the words "...whereas final assessment of excise duty ... could not be made for want of full information as regards value/description, quality or of proof therefor or for the non-completion of the chemical or other tests in respect thereof or otherwise". The provisions regarding value and description are given as alternative requirements only. Further the bond amount has been determined with respect to valuation angle. Hence the assessment was provisional for valuation only and not for classification. He, therefore, supported the order in appeal and opposed the present appeals.;

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