COMMISSIONER OF CENTRAL EXCISE, HYDERABAD Vs. SANGHI POLYESTERS

JUDGEMENT

(1.) REVENUE is in appeal against the Order -in -Appeal No. 96 and 97/2001 (H.III CE), dated 8 -6 -2001 passed by the Commissioner (Appeals), Customs and Central Excise, Hyderabad. The issue in dispute before the Commissioner (Appeals) was whether the assessee was right in taking credits and making debits in respect of duty payments pursuant to RT -12 (monthly returns) assessment orders passed by the Superintendent under Central Excise Rule 173 -I of the Central Excise Rules, 1944. The period of payment of duty was prior to amendment of that Rule w.e.f. 20 -11 -1996. Assessment orders in question accepted excess and short payments of duty with the indication Assessee is eligible for a debit/the assessee shall pay amount/assessee also debit the amount/assessee shall take credit etc. In terms of such assessment orders, debits and credits were taken by the assessee. Subsequently, Show -cause Notice was issued alleging that assessee could not take any credit inasmuch as, under Rule 173 -I w.e.f. 20 -11 -1996 any excess paid amount could be claimed only as refund under Section 11B of the Central Excise Act. Charges in the Show -cause Notice were upheld by the original authority. However, when the matter came in appeal before the Commissioner, that Commissioner held in favour of the assessee. Commissioner noted that Rule 173 -I provided that after assessment of RT -12 return by Superintendent, where duty assessed is less than duty paid, assessee shall take the credit in the account current for the excess duty and similarly, where amount paid was less, the assessee shall pay deficiencies by making debit in the account current within 10 days of the receipt of the copy of the Returns from the proper officer. Commissioner (Appeals) also noted that Section 38 of the Central Excise Act has provided that amendment a Rule would be prospective in application. Commissioner (Appeals) further noted that Board had clarified under Circular No. 249/83/96 -CX, dated 11 -10 -1996 and 273/107/96 -CX, dated 21 -11 -1996 that new procedure of self -assessment in terms of Notification No. 36/96 -C.E. (N.T.), dated 20 -11 -1996 has to be followed in the RT -12 filed for November 1996 onwards and that assessment of returns for the month of October 1996 having been filed in the month of November 1996 should be done by the departmental officers as was done hitherto. Commissioner (Appeals) also noted that the Tribunal had upheld such credit and debit in the case of Sulekha Works Ltd. In the present appeals also, Revenue persists with its contention that assessee should have filed refund application for the return of the excess amount of duty paid and that it could not have taken credit of the excess amount based on the RT -12 assessment order of the Superintendent.

(2.) WE have perused the records and have considered the submissions made by both sides. We do not find any merit in the present appeals of the Revenue. As is evident from a perusal of the order of the Commissioner (Appeals), that order is in conformity with the Circular of the Board and of this Tribunals order in the case of Sulekha Works Ltd. - 1998 (102) E.L.T. 274. During the hearing of the case, learned Counsel for the respondent has submitted that an earlier order of the Tribunal [C.C.E. v. Simplex Mill Company Ltd. - 1989 (44) E.L.T. 259] which held that provision of Section 11B would not be applicable to differential duties arising out of Rule 173 -I assessments had been confirmed by the Honble Supreme Court - 1990 (45) E.L.T. A34.

(3.) IN the abovementioned legal position, there is no merit in the appeals of the Revenue. The same fail and are rejected.