Customs, Excise and Gold Tribunal - Tamil Nadu
Tamil Nadu Telecommunications Ltd. vs Cce on 22 February, 2002
Equivalent citations: 2002(104)ECR142(TRI.-CHENNAI)
ORDER Jeet Ram Kait, Member (T)
1. Both these appeals filed by Tamil Nadu Telecommunications Ltd are directed against the order in Appeal No. 4 & 5/97(M) dated 7.4.1997 passed by the Commissioner (Appeals), Madras. The grievance of the appellants is that the Assistant Collector had inter alia rejected their refund claim for Rs. 2,64,643/- and 2,73,656/- as time barred under the provisions of Section 11B of the CE Act, 1944 and the Commissioner (Appeals) has confirmed the order of the Assistant Commissioner by rejecting both the appeals filed by them.
2. Shri Krishna Srinivas, learned Counsel appearing on behalf of the appellants submitted that there were provisional assessments because the purchase orders contained variation clause to take care of any variation in the price of copper, the major raw material. The appellants issued sale order and commenced despatches. The price of the copper is announced monthly by the Ministry of Communications, New Delhi. The final price of copper in respect of sale order No. 36 to 44 had reduced consequent to the reduction in the price of copper resulting in the assessee being eligible for refund of Rs. 18,59,827.28 subject to the provisions of Section 11B of the CE Act, 1944. The Assistant Commissioner vide his letter C. No. V/85/8/22/95 VC dated 17.11.1995 which is at page No. 75 of the paper book finalised the provisional assessment from 12/91 to 3/95. Therefore, there is no dispute that the assessment was provisional and the same was finalised under Rule 913(5) of the CE Rules, 1944. He further submitted that they filed the refund claim, even prior to the finalisation of the assessment because they knew that the new price which was communicated to them by the department of Telecommunications and application for refund amount of Rs. 3,21,538.71 was filed by them with the Assistant Commissioner Ranipet Division, Ra-nipet. He further submitted that the order of the Commissioner (Appeals) is based on premises that prior to 20.9.1991, the relevant date under Section 11B in the case of provisional payment of duty was the date of assessment of duty after final assessment thereof. He also recorded that this provision was omitted by the Central Excise and Customs Laws (Amendment) Act, 1991 vide Notification No. 30/91-CE(NT) dated 19.11.1991. It was on this understanding he held that the relevant date in respect of even the provisional assessment would now be, only the date of payment of duty. The learned Counsel invited our attention to para 95 of the judgment of the Hon'ble Apex Court in the case of Mafatlal Industries v. CCE reported in 1987 (87) ELT 247 (SC) (sic) 1997 (68) ECR 209 (SC), in which it has been held that when provisional assessment is finalised under Rule 9B(5) of the rules ibid, the provisions of Section 11A or 11B of the Act would not be applicable in such cases. He also relied upon the judgment of the East Regional Bench of CEGAT in the case of TISCO Ltd. v. CCE, Jamshedpur in which it has been held that the relevant date for computing limitation for refund claim where the assessment is provisional, is the date when the provisional assessment was finalised. Further, entitlement to refund would be known only when the duty is finally adjusted and count down to limitation period of six months starts only from that date. It was also held that there has to be harmonious construction between Rule 9B ibid and Section 11B ibid and limitation of six months for claiming refund starts only from the date of final assessment. He also relied upon the judgment of Court 1 of CEGAT, New Delhi in the case of Indian Aluminium Cables Ltd. v. CCE, New Delhi wherein the Bench presided over by Hon'ble Justice UL Bhat, President, held that limitation for refund in a case where provisional assessments are involved under Rule 9B, the provisions of Section 11B of the Act ibid are not attracted. The Tribunal while holding this view had relied upon the judgment of the Bombay High Court in the case of Premier Automobiles Ltd. v. UOI .
3. Heard Shri G.S. Menon, the learned SDR. He reiterates the department's view.
4. We have eonsidered the submissions, gone through the reeords and the various case laws eited. We are of the considered opinion that where provisional assessment is involvcd and such assessment is finalised under Rule 9B(5) of the CE Rules, the provisions of Section 11A and Section 11B will not be applicable as held by the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. reported in 1987 (87) ELT 247 (SC) : 1997 (68) ECR 209 (SC), the East Regional Bench of CEGAT in the case of TISCO Ltd. v. CCE, Jamshedpur (supra) and also in the case of Indian Aluminium Cables Ltd. (supra). Therefore we set aside the impugned order of the Commissioner (Appeals) as the same is against the provisions of law cited by the appellants. We, therefore, allow the appeal with consequential relief, if any, as per law (Pronounced in open Court on 22.2.2002)