Decided on January 28,1986



S.Kalyanam, - (1.)THIS appeal is filed by the Collector Central Excise, Bangalore, and is directed against the order of the Collector of Central Excise (Appeals Central Excise, Kanakapura Road Range, Bangalore, calling upon the respondents herein to make good a sum of Rs. 16,902.07 by making suitable debit entry in their P.L.A. The respondents herein are cotton processors having a licence No. 1/59 (Processing). The respondents filed a classification list No. 177/84 with effect from 1-3-1984 and the same was approved by the jurisdictional Assistant Collector on 6-7-1984, But in granting such approval, the Assistant Collector in the classification list expressly denied the respondents here the benefit of concession under Notification No. 251/82. The respondents did not file any appeal against such an order of the Assistant Collector denying them the concession under the said notification in their classification list. Nevertheless, the respondents continued to avail themselves of the concession in terms of Notification No. 251 /82 dated 8-11-1982 and subsequently when the respondents filed their monthly return viz. R.T. 12 for July 1984, the Superintendent under the original order referred to supra, finding that the respondents had wrongly availed credit by taking the concession under notification No. 251/82 directed them to make good the same by making appropriate debit entry in their P.L.A. The direction of the Superintendent was assailed by way of appeal to the Collector (Appeals) who by the impugned order vacated the directions of the superintendent as against which the Collector of Central Excise, Bangalore, has come by way of appeal before this Tribunal.
(2.)The learned S.D.R. submitted that when the respondents' classification list itself was not approved in entirety and when the Department has specifically chosen to deny the respondents of the concessional benefit which they claimed in the classification list in terms of notification No. 251/82, the respondents should have filed an appeal if they felt aggrieved and not having filed an appeal, it is not now upon to the respondents to question the correctness of the directions of the Superintendent at the time of finalisation of their R.T. 12 return. The learned S.D.R. also assailed the finding of the Collector (Appeals) in the impugned order holding that clearances had been effected by the respondents as per the approved classification list. He further urged that the bar of limitation under Section 11A of the Central Excises and Salt Act, 1944, cannot be telescoped into the R.T. 12 under Rule 173-1.
The learned counsel for the respondents submitted that notwithstanding the fact that the respondents did not file an appeal against the rejection of the classification list in respect of the concession claimed under notification No. 251/82, that would not absolve the Department from independently giving a show cause notice before calling upon the respondents to make good the amount short paid. He further urged that the reasoning of the Collector (Appeals) in the impugned order is well founded and the bar of limitation under Section 11A of the Act would be applicable even to the R.T. 12 assessment proceedings.

(3.)I have considered the submissions of the parties herein. The fact remains that the claim of the respondents relating to the concession of notification No. 251/82 in their classification list No. 177/84 was not approved by the jurisdictional Assistant Collector. In such a situation, the respondents as a aggrieved person should have preferred an appeal as per law before the proper authority questioning the same. The respondents admittedly, have not done that. So far as R.T. 12 finalisation is concerned, a statutory obligation is cast on the respondents to compute the quantum of tax in terms of approved price list and classification list and pay the same by appropriate credit and debit in the P.L.A. When the appellants were not premitted by the authority to avail of the concession under notification No. 251/82 the respondents would not be in order to avail themselves of that concession and take credit for the same in their P.L.A. R.T. 12 finalisation is more in the nature of an arithmetical verification of what the respondents have done with reference to the approved price list and classification list in computing the quantum of tax. Therefore, in the factual background of this case, the question of invoking the bar of limitation incorporated in Section 11A of the Act would not appear to be relevant at all. The Collector (Appeals) in the impugned order has proceeded on an erroneous impression as if the Department had approved the classification list of the respondents herein and that the respondents had effected clearances on the basis of such approved classification list and presumably, this misapprehension of the factual position on the part of the lower appellate authority has resulted in "an error in the impugned order now appealed against. I therefore, set aside the impugned order and allow the appeal. It is made clear that if the respondents have any other remedy under law, they would be at liberty to seek such relief before the appropriate forum.

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