Customs, Excise and Gold Tribunal - Tamil Nadu
Tata Iron And Steel Co. Ltd. vs Commissioner Of Central Excise on 9 February, 1998
Equivalent citations: 1998(60)ECC466
ORDER
T.P. Nambiar, Member
1. This appeal is filed by the appellants against the decision of the Collector (Appeals). In terms of that order, he held that the application for refund is barred by limitation. The Collector (Appeals) in the impugned order held that the relevant date under Section 11B of the CEA 1944 is six months from the date of payment of purchase of the goods in question. He held that in this particular case, the goods were cleared in piece meal over a period of time and the appellants were entitled to exemption as components and parts of ESP. Therefore, each such clearance was clearance of goods on payment of duty referred to under Section 11B of the Act. He also held that the appellants had admitted that invoices were raised by the BHEL against each clearance and payments were also made by them after receipt of the goods by them. Therefore, he held that relevant date was when payments were made by them during February to March 93 during which period these parts were cleared by the appellants. Against this finding the appellants have filed the appeal.
2. Shri Vasan, learned Counsel for the appellants contended before us that the assessments were provisional. It was his contention that BHEL has issued a letter dated 30.1.96 where it was stated as follows:--
Re : Your order No. MOD/SA04-112-CPG/PRJ/9P5900/BC57 DT. 31.12.92 for supply of ESP.
This is to confirm that with the last consignment of component despatched in respect of the above order in November 1994, the order stands duly executed and completed. We have also forwarded to you our final invoice under cover of our letter No. BAP/COMML/3087/9501 dt. 14.2.95.
You will find that as against the earlier estimated tonnage of 988.050 tonnes for the above unit on the basis of which price and excise duty for each consignment were billed by us, the final bill for the recovery of the balance contract value based on actual quantity despatched, has been sent to you for payment under cover of above referred letter.
He pointed out that this letter was produced before the authorities. He pointed out that there is no finding in the impugned order that this letter was actually produced. He further contended that since this goes to the root of the matter, this fact whether the assessment was provisional or not is very material to decide the question in issue. It was pointed out that if the assessments were provisional then the relevant date is the date of final assessment. It was therefore, pointed out that this document has got a bearing and the authorities are to decide the matter by entering a finding whether the assessments were provisional or not.
3. Heard Shri R. Saroop the learned DR. He pointed that during the relevant period, ESP was cleared in parts by the appellants and whenever they have cleared the goods in part invoices were also raised and they were making payments. Therefore, he pointed out that the appellants have made payment against each clearances and therefore, the relevant date in terms of Section 11B Explanation (B)(e) is the date of purchase of the goods. He pointed out that for each clearance payment was made separately and therefore, in terms of Section 11B Explanation (B)(e) the relevant date is the date of purchase of the goods. He therefore pointed out that it was rightly held by the Collector (Appeals) that the claim is hit by limitation. He further pointed out that in respect of the provisional nature of the assessments, nothing has been argued before the authorities as can be seen from the impugned order. It was therefore, pointed out that the appellants not having put forth this point before the CCE(A) cannot, urge the same before the Tribunal.
4. We have considered the submissions made before us. In order to determine the relevant date it is very material to find out whether the assessment was provisional or not. For the purpose of exemption the CCE(A) has allowed the plea of the appellants. He held that the parts were sent in piece meal over a period of time and the appellants were entitled for benefit of exemption. The appellants in their grounds of appeal at para 6 that the assessment was not final and the same was only provisional. In order to substantiate this plea, they have also filed letter dated 30.1.96 issued by the BHEL wherein it was stated that components despatched in respect of the above order has been duly executed and completed and they have also forwarded their final invoice under the cover of their letter dated 14.2.95. It is therefore, to be seen whether the assessment was final or provisional. If it is provisional then certainly the date of the refund claim starts from the date of final assessment. Such facts are not before us. The appellants have urged this aspect before the lower authority, Since this factor goes to the root of the matter, this aspect is required to be looked into by the CCE(A) in view of the fact that the appellants produced the letter from BHEL to show that the assessment was provisional. In the above view of the matter, we set aside the impugned order so far as the aspect, under Section 11B is concerned, and the CCE(A) should decide the case after granting opportunity of hearing to the appellant and allow them to produce the said document and after examining this document, enter a decision in the matter in accordance with law.
The appeal is allowed by remand in the above terms.
Dictated and pronounced in open Court.