Customs, Excise and Gold Tribunal - Tamil Nadu
Collector Of Central Excise vs India Tyre And Rubber Co. Ltd. And Anr. on 18 December, 1985
Equivalent citations: 1987(10)ECR269(TRI.-CHENNAI), 1988(33)ELT613(TRI-CHENNAI)
ORDER C.T.A. Pillai, Member (T)
1. In all the above three reference applications, filed tinder Section 35G of the Central Excises and Salt Act, 1944 the applicants have required us to refer identical questions of law which are said to arise from the order of the Tribunal, As the facts of the case, which are given below, are common to all, the three applications for the purpose of this reference, they are dealt with together.
2. The respondent companies are manufacturers of tyres and a few other rubber products having their factory at Madras. Their claim for refund of duty based on exemption Notification No. 178-GE., dated 18.6.1977 were rejected by the Assistant Collector of Central Excise on the ground that they were barred by limitation under Rule 11 of the Central Excise Rules and for non-compliance of the conditions contained in the Central Excise Notification No. 178/77 (Annexure D) in respect of the two appeals ED(T)(M)A. No. 95/82 and ED(M) A. No. 11/84 and on the ground that the claim was unsubstantiated in respect of the Appeal No. ED(M) A. No. 10/84 against the proposal to regret the claim on the same grounds cited in the other two cases (Annexure B). On appeal by the respondents against the above orders, the Collector of Central Excise (Appeals) confirmed the order of the Assistant Collector (Annexure C).
3. The respondents filed appeals against the above orders to this Tribunal. The respondents claimed that the entire assessments of the goods in respect of which refund was claimed under Central Excise Notification 178/77 were accepted by the Department as provisional under Rule 9B of the Central Excise Rules, 1944 pending determination of assessable value. The respondents relied on an earlier order of this Tribunal No. ED(M) A. No. 327/83 dated 7.11.1984 (Annexure A3) in the case of the respondent companies v. the Collector of Central Excise, Madras. This claim was accepted by the Department.
4. The Tribunal's order dated 24.5.1985 and its further order dated 1.11.1985 on Miscellaneous Application Nos. 201 to 203/85 are reproduced below :- (Annexure Al & A2.).
Tribunal's Order dated 24.5.1985.
"In these three appeals, the appellants are relying on the rationale of the judgment of this Tribunal contained in No. ED(MAS) 327/83 dated 7.11.1984 viz. where there was a provisional assessment in regard to Post Manufacturing Expenses claim for refund would be bound and not be affected by time-bar. Senior Departmental Representative confirms that in these three cases, assessments had been made provisionally. Following the decision of this Tribunal referred to supra, we allow all the three appeals."
Tribunal's Order dated 1.11.1985.
"The apprehension expressed is that the order of the Tribunal No. E(T) 95 of 1982, 10/84 and 11 of 1984, all dated 24.5.1985 would lead to an inference that refund is to be paid even if it is not payable for reasons other than time-bar. We hereby clarify that in allowing the appeal, we have considered the question of time-bar alone and consideration of the merits of the refund claim by the appellate authority on other points, if any, will not be affected by our order."
5. We have heard both the sides to the reference application. Consequent to the clarification issued by the Tribunal (Annexure A2), the applicant has withdrawn the question relating to merits of the refund claim, which were not considered by us and hence, does not arise from our order. As a result of discussion, we find that a question in the following form arises from our order. We accordingly refer this question to the Hon'ble High Court of Judicature at Madras :
"When a provisional assessment is made under Rule 9B of the Central Excise Rules, 1944 on any of the permissible ground (s) allowed thereunder, is it lawful to hold that the assessment as a whole is provisional so as to save a claim for refund on a different ground from the operation of time-bar, or whether the provisionality is restricted to the only ground(s) on the basis of which provisional assessment was initially resorted to?"