SURYA POLYMERS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) All these eleven appeals arise out of a common Order -in -Appeal Nos. 30 -40/96 (MDU), dated 15 -2 -96, by which the ld. Commissioner (Appeals) has held that the appellant's claim of refund of duty paid in excess on account of additional discount is abatable from the assessable value arid such refunds will have to be claimed only by filing a proper claim in terms of Section 11B of Central Excise Act. Inasmuch as, even in the case of provisional assessment after the amendment made to Section 11B the time -limit of six months would operate not from the date of finalisation of the provisional assessment but from the date of payment of duty, as envisaged under Section 11B(5)(b)(f) of the Act. He therefore, held that in all the cases relating to these appeals, formal refund claims have not been filed in terms of Section 11B of the Act. He therefore, rejected all the appeals by sustaining the order -in -original.

(2.) Aggrieved by this order, the appellant have come in appeal before us on the ground that the order of the Commissioner (Appeals) is not legal and proper and he is in error in rejecting the appeals on the ground that formal refund claims have not been filed within six months from the date of payment of duty in terms of Section 11B of the Central Excise Act, 1944. The case of the appellant is a case of assessment to be made by the proper officer on the RT 12 returns filed by the assessee. However, the goods manufactured by the assessee have been sold only through their depots for which they have filed the declaration under Rule 173C of the CE Rules and the basis for claiming quantitative discount were also furnished to the department by them. They had filed RT 12 returns on the due date and subsequently furnished the details of the sales at the depot. The assessing officer has to determine the duty under Rule 173 -I, by checking the Sale Invoices with reference to the Declaration filed under Rule 173C and where there is an excess payment, the officer should give direction in the RT 12 for taking credit of the excess payment in the PLA/RG 23. They therefore, submitted that the question of filing a refund claim does not arise. Inasmuch as Rule 173 does not contemplate filing of a refund claim every month which will make the Assistant Commissioner as the assessing officer. In this connection, they relied on the Tribunal's judgment rendered in the case of Balaji Fasteners and Simplex Mills Co. Ltd. v. CC, wherein it was held that the Rule 173 -I does not envisage a separate application for refund being filed by the assessee as reported in 1990 (46) E.L.T. 543 (Tri.) and 1989 (44) E.L.T. 259 (Tri.). They also submitted that similar view had been taken by the Tribunal in the case of Tata Oil Mills case 1990 (46) E.L.T. 438 (Tri.).

(3.) Shri P. Devaludu, ld. DR appeared on behalf of the Revenue and reiterates the finding recorded by the ld. Commissioner (Appeals) and submits that formal refund claim was required to be filed by them after the impugned order. The assessment of RT 12 returns was communicated to them and they were required to file the claim within six months from the date of communication of the impugned order.