1. Collector of Central Excise and Customs, Pune had filed the above captioned appeals before the West Regional Bench, Bombay, being aggrieved from the orders passed by the Collector of Central Exise (Appeals), Bombay. The matter had come up for hearing before the West Regional Bench, Bombay and the West Regional Bench Bombay vide order No. 1686-87/88 WRB dated 2nd December, 1988 had placed the matter before the Hon'ble the President for constitution of a Larger Bench to resolve the conflict and the Hon'ble President has referred the matter to this Bench. Since the issue involved in both the appeals is common, the same are being disposed of by this common order.
2. The facts of both the appeals are similar. For the sake of brevity the facts in respect of appeal No. 42/84 are being given below :- 3. M/s. P.M.T. Machine Tools Automatics Pvt. Ltd., Pune-18 had made an application for refund of Rs. 11,061.30 on the ground that some of the parts/components of the machines on which they had paid duty for machines under Tariff Item 52 instead of under T.I. 68 and that the said goods were not shown in the classification list of T.I. 52 and the correct classification of these parts should have been under T.I. 68.
The application was made on 9th September, 1980 and it was mentioned in the application that the assessment under R.T. 12 was provisional and, therefore, the time limit of six months laid down in Rule 11 of the Central Excise Rules, 1944 should be reckoned from the date of the final assessment, which had still not been done. A show cause notice was issued to the respondents on the ground that the refund claim was not entertainable under Rule 11 of the Central Exise Rules, 1944 and the respondents in reply to the said show cause notice contended that the assessments were provisional and, therefore, the limitation of six months should apply only from the date when the assessments were finalised and that the assessments were still to be finalised and hence, there claim was entertainable and during the course of personal hearing, the same argument was reiterated and it was contended that the claim was not time-barred. It was also argued that the issue related to the classification list and payment of duty in accordance with the approved rate of duty in the classification list. The period in dispute was 16th May, 1979 to 20th November, 1979 and during this period the classification list in respect of the goods for which refund claim had been filed had already been finally approved vide classification list No. 24 on 28th August, 1978 and classification list No. 63/79 approved on 31st December, 1979 effective from 1st August, 1979. The gate passes clearly indicated the number of parts shown in the classification list and these parts/components of the machines were finally approved as bolts, nuts and screws under T.I. 52. The classification of the aforesaid products had never been disputed and the said classification under T.I. 52 had also been declared in the classification list filed by the assessee in the year 1980 (Classification List dated 19th June, 1980). The Assistant Collector held that the duty paid on the goods under reference under T.I. 52 was correct and there was no excess payment. As regards the assessment of R.T. 12's, the respondents had contended that these were provisionally assessed and the Assistant Collector's order had accepted that R.T. 12's were provisionally assessed because of the dispute in valuation, insasmuch as the goods were sold through the sole selling agent and the information in respect of the prices charged by the sole selling agent had to be ascertained and the assessee had not produced the relevant data for finalisation of the assessments. The provisional assessment was thus not on account of the goods cleared from the factory or utilised in the factory for captive consumption. The Assistant Collector further observed that since the assessments were not made provisionally on account of the rate of duty and classification of the products under reference had already been approved finally, there was no case of excess payment of duty and, therefore, rejected the claim not maintainable under the provisions of Rule 11 of the Central Excise Rules, 1944 (treating that the duty had been correctly paid in accordance with the rate of duty finally approved in the relevant classification list from time to time).
4. Being aggrieved from the aforesaid order, the respondent had filed an appeal before the Collector of Central Excise (Appeals), Bombay and before the Collector of Central Excise (Appeals), it was contended that the excess Central Excise duty was paid erroneously under T.I. 52 instead of T.I. 68 and limitation of six months did not apply in their case from the date of debit entry in PLA but applied from the date of final assessment and as long as assessment was not finalised under R.T.12 return, they were entitled to claim refund. Before the Collector of Central Excise (Appeals), Bombay, the respondent had cited a decision of the Government of India in Revision Order No. 760/79 dated 22nd September, 1979. The Collector of Central Excise (Appeals), Bombay had observed that the period for the refund claim related from 16th May, 1979 to 20th November, 1979 and the refund was claimed on 9th September, 1980. The claim was for the components of the machines which were classified under T.I. 68 but duty was paid by mistake under T.I.52. The Collector of Central Excise (Appeals) had observed that the assessments were finalised only in July, 1981 and the limitation of six months will apply only from the date of the finalisation since the assessments were made provisionally and the respondent had requested for refund much before the finalisation of their assessments. The Collector of Central Excise (Appeals) did not accept the contention of the Lower Authority that the assessments were not made provisionally on account of the rate of duty but they were provisional on account of dispute of valuation. He had taken the view that since the assessments were provisional, the respondents were well within their rights to claim refund within six months from the date of the finalisation of the assessments. It made no difference as on what ground there was provisional assessment. Since these were provisional assessments, the date of limitation would start only from the date of finalisation of the assessments and he had allowed the appeal.
5. Being aggrieved from the afroresaid order, the revenue has come in appeal before the Tribunal.
6. In respect of appeal No. 43/84 the refund amount involved is Rs. 4587.91. The period involved is 25th July, 1979 to 22nd January, 1980 and the refund claim was filed on 24th March, 1980 and the assessment was finalised on 25th July, 1981. The Assistant Collector had rejected the refund claim and the Collector (Appeals) had allowed the refund claim on the ground that the limitation is to be reckoned from the date of the finalisation of the assessment and being not satisfied from the order passed by the Collector (Appeals), the revenue has come in appeal before the Tribunal.
7. Notices of hearing were sent to the appellant, respondents and the Bar Association. Shri S.K. Sharma, the learned JDR has appeared on behalf of the appellant. Nobody has appeared on behalf of the respondent. Shri R.K. Jain, the learned Consultant has appeared on behalf of the Bar Association. We proceed to decide the same on merits.
8. Shri S.K. Sharma, the learned JDR who has appeared on behalf of the appellant, pleaded that he relies on the order passed by the Assistant Collector and pleaded that the refund claims were barred by limitation, as the same were filed after the expiry of limitation, viz., much after the expiry of six months from the date of payment of the duty. He has pleaded for the acceptance of the revenue's appeals.
9. Shri R.K. Jain, the learned Consultant who has appeared on behalf of the Bar Association, has reiterated the facts. He has pleaded that when the duty was paid, the assessments were provisional. In respect of valuation the refund claims were filed on the basis of classification.
Shri Jain pleaded that the assessments in respect of valuation were provisional and were finalised on 25th July, 1981, whereas the refund claim for Rs. 11,061.30 was filed on 9th September, 1980 and the refund claim for Rs. 4587.91 was filed on 24th March, 1980. Shri R.K. Jain, the learned Consultant has referred to Rule 11. Shri R.K. Jain pleaded that during the period in dispute in both the matters erstwhile Rule 11 was prevalent and in terms of sub-rule (1) of Rule 11 any person claiming refund of any duty paid by him may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty provided, that the limitation of six months shall not apply where any duty has been paid under protest. Shri Jain also referred to the explanation to sub-rule (1) of Rule 11 which provided that where any duty was paid provisionally under these rules on the basis of the value or the rate of duty, the period of six months shall be computed from the date on which the duty was adjusted after final determination of the value or the rate of duty, as the case may be. Shri Jain has laid emphasis on the words "as the case may be" as given in the explanation to sub-rule (1) of Rule 11. Shri Jain stated that the limitation will run from the date of finalisation of the assessment as per the appellant. Shri Jain referred to Rule 11 of the Central Excise Rules and pleaded that the rule has been reproduced on internal Page 6 in Para 7 of the referring bench's order. Shri Jain argued that the words "as the case may be" which appears in the explanation to sub-rule (1) of Rule 11, means the dispute may be for valuation or the dispute may be for rate of duty. He has also referred to Rule 9B of the Central Excise Rules, 1944 which relates to provisional assessment. Shri Jain has referred to a judgment in the case of Kerala Electric Lamp Works Ltd. and Anr. v. Collector of C. Ex., Cochin and Anr., reported in 1988 (33) ELT 771 (Tribunal) where the Tribunal had held that: "Section 11B makes no distinction based on the reason for the provisional assessment. Consequently, it is not possible to hold that the assessments were provisional for one ground of dispute but were final for the other ground. Provisional assessments have to be treated as provisional for all purposes. Since the assessments in the present case are provisional, pending resolution of the dispute on the question of related person, consequential refund accruing to the assessee for the period prior to 25-3-1982 will not be hit by time-bar of Section 11B." The Tribunal had relied on the decision of the Supreme Court in the case of Assistant Collector of C.Ex., Calcutta v. National Tobacco Co. of India Ltd., reported in 1978 (2) ELT J 416 and in the case of D.N. Kohli, Collector of Central Excise, Bombay v. Krishna Silicate & Glass Works and Anr., reported in 1983 (12) ELT 216 (Bom.) and Siemens (India) Ltd., Thane and Ors. v.Collector of Central Excise, Thane and Ors., reported in 1986 (25) ELT 821 (Tribunal). Shri Jain argued that provisional assessments Were provisional for whatever reason may be for all purposes. Shri Jain, the learned Consultant referred to provisions of Rule 173A(2) and Rule 173Q. Shri Jain argued that there can never be a piecemeal assessment.
In support of his argument, he has referred to a judgment of the Madras High Court in the case of Collector of Central Excise, Madras v.Chennai Bottling Company, Madras, reported in 1986 (24) ELT 3 (Mad.).
Shri Jain has argued that in view of the judgments cited by him in the case of Kerala Electric Lamp Works Ltd. v. Collector of Central Excise, Cochin,(Tri.), Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd., reported in 1978 (2) ELT J 416 and D.N. Kohli, Collector of Central Excise, Bombay v. Krishna Silicate & Glass Works and Anr., reported in 1983 (12) ELT 216 (Bom.), limitation will run from the date of final assessment and not from the date of payment of duty. He argued that for the completion of the provisional assessment of R.T. 12 returns no regular notice was necessary under Section 11A. He also argued that Rule 173(1) and Rule 9B provide complete machinery in itself. Shri Jain argued that the approval of price list and the Classification List is not an assessment. He has referred to Section 11B and explanation (e) which defines relevant date in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof. Shri Jain argued that before making the provisional assessment, an order has to be passed by an authority. He also argued that Rule 173(1) and Rule 9B have to be read and the assessing authority is to refund the amount paid in excess suo moto on the finalisation of the assessment. Shri Jain has argued that explanation has to be read with old Rule 11 and the provisions under Section 11B of the Central Excises and Salt Act, 1944 will be different. He argued that once an assessment is provisional, it is provisional for all purposes. Shri Jain has pleaded for the dismissal of the revenue's appeal.
10. We have heard both the sides and have gone through the facts and circumstances of the case. The facts are not disputed. The duty was paid by the respondents after the finalisation of the classification list. It is also not disputed that the price lists were approved provisionally and R.T. 12 returns were assessed finally in July, 1981, whereas the refund claim in appeal No. 42/84 was filed on 9th September, 1980 and in appeal No. 43/84 was filed on 24th March, 1980 and the assessments under R.T. 12 returns were completed in July, 1981.
The issue to be decided is whether once the assessment is provisional it is to be treated provisional for all purposes or to be treated in a piecemeal manner. For the proper appreciation relevant sub-rule (1) of Rule 11 then prevalent is reproduced below :- (1) Any person claiming refund of any duty paid by him may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty: Provided that the limitation of six months shall not apply where any duty has been paid under protest.
Explanation. - Where any duty is paid provisionally under these rules on the basis of the value or the rate of duty, the period of six months shall be computed from the date on which the duty is adjusted after final determination of the value or the rate of duty, as the case may be." A simple perusal of sub-rule (1) of Rule 11 shows that where a person is claiming refund of duty paid by him, he has to make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty. There is a proviso that limitation of six months shall not apply where any duty has been paid under protest. There is also an explanation which shows that where any duty is paid provisionally under these rules on the basis of the value or the rate of duty, the period of six months shall be computed from the date on which the duty is adjusted after final determination of the rule or the rate of duty. Hon'ble Supreme Court in the case of Kedarnath Jute Manufacturing Co. Ltd. v.Commissioner of Income-tax, reported in AIR 1971 SC 2145 had held that the quantification is effected by assessment proceedings. Relevant extract from Para No. 7 at Page 2146 of the said judgment is reproduced below :- "7. Now under all sales tax laws including the statute with which we are concerned, the moment a dealer makes either purchases or sales which are subject to taxation, the obligation to pay the tax arises and tax-ability is attracted. Although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment. It is significant that in the present case, the liability had even been quantified and a demand had been created in the sum of Rupees 1,49,776.00 by means of the notice dated 21st November, 1957 during the pendency of the assessment proceedings before the Income Tax Officer and before the finalisation of the assessment." The Tribunal had the occasion to deal with similar situation in the case of Kerala Electric Lamp Works Ltd. and Anr. v. Collector of Central Excise, Cochin and Anr., reported in 1988 (33) ELT 771 (Tribunal). Para No. 13 from the said judgment is reproduced below :- "13. The only other point that needs to be looked into for the period prior to 25-3-1982 is the question of time-bar. It was the common ground of both parties before us that the assessments were provisional under Rule 9B of the Central Excise Rules, 1944. The department's point is that they were provisional only for the disputed issue of post-manufacturing expenses and not for the disputed issue of related person and hence the assessments on the count of related persons should be considered as final and the consequential refund time-barred for the period earlier than six months. In support of this argument, the learned Representative of the Department cited the Madras High Court judgment in the case of Chinai Bottling Company [1986 (24) ELT 3 (Madras) ]. It was held in this judgment that payment could be considered under protest only for the ground of protest and not for any other ground. The learned Representative of the Department stated that since the object of protest as well as provisional assessment was the same -to avoid the bar of limitation - the ratio of the Madras High Court judgment on protest should hold good for provisional assessment as well. The assessee replied that the analogy sought to be drawn by the learned Representative of the Department between protest and provisional assessment was not correct inasmuch as while Rule 233B(1) required the grounds of protest to be specified, there was no such requirement in Rule 9B or in B13 bond. The assessee cited the rulings at 1978 (2) ELT J 416 (SC) National Tobacco Company, 1983 (12) ELT 216 (Bombay) - DM Kohli v. Krishna Silicate Glass Works and 1986 (25) ELT 821 (Tribunal) Siemens (India) Ltd., Thane and Ors. v. Collector of Central Excise -and asserted that the Tribunal had been taking the consisting view that provisional assessments, for whatever reason provisional, were provisional for all purposes. We agree with the assessee. Section 11B of the Act, relating to refunds, specifically provides that - "In a case where duty of excise is paid provisionally under this Act or the Rules made thereunder, the date of adjustment of duty after the final assessment thereof." The above provision makes no distinction based on the reason for the provisional assessment. Consequently, it is not possible to hold that the assessments were provisional for one ground of dispute but were final for the other ground. Provisional assessments have to be treated as provisional for all purposes. Since the assessments in the present case are still provisional, pending resolution of the dispute on the question of related person, we hold that consequential refund accruing to the assessee for the period prior to 25-3-1982 will not be hit by the time-bar of Section 11B." The Tribunal had followed the decision of the Supreme Court in the case of Asstt. Collector of Central Excise, Calcutta v. National Tobacco Co.
of India Ltd., reported in 1978 (2) ELT J 416. Paras No. 20 and 22 from the said judgment are reproduced below :- "20. The term "levy" appears to us to be wider in its import than the term "assessment". It may include both "imposition" of a tax as well as assessment. The term "imposition" is generally used for the levy of a tax or duty by legislative provisions indicating the subject matter of the tax and the rates at which it has to be taxed.
The term "assessment", on the other hand, is generally used in this country for the actual procedure adopted in fixing the liability to pay a tax on account of particular goods or property or whatever may be the object of the tax in a particular case and determining its amount. The Division Bench appeared to equate "levy" with an "assessment" as well as with the collection of a tax when it held that "when the payment of tax is enforced, there is a levy". We think that, although the connotation of the term "levy" seems wider than that of "assessment", which it includes, yet, it does not seem to us to extend to "collection". Article 265 of the Constitution makes a distinction between "levy" and "collection". We also find that in N.B. Sanjana v. The Elphinstone Spg. & Wvg. Mills Co. Ltd., AIR 1971 SC 2039 at p. 2045 this Court made a distinction between "levy" and "collection" as used in the Act and the Rules before us.
It said there with reference to Rule 10.
"We are not inclined to accept the contention of Dr. Syed Mohammad that the expression 'levy' in R. 10 means actual collection of some amount. The charging provision Section 3(1) specifically says "There shall be levied and collected in such a manner as may be prescribed the duty of excise.... It is to be noted that Sub-section (1) uses both the expressions "levied and collected" and that clearly shows that the expression 'levy' has not been used in the Act or the Rules as meaning actual collection." "22. Undoubtedly, a mechanical adjustment and ostensible settlement of accounts, by making debit entries, was gone through in the case before us. But we could not equate such an adjustment with an assessment, a quasi-judicial process which involves due application of mind to the facts as well as to the requirements of law, unless we were bound by law give such an unusual interpretation to the term "assessment". Here we do not find any such definition of assessment or any compelling reason to hold that what could at most be a mechanical provisional collection, which would become a "levy" in the eye of law only after an "assessment", was itself a levy or an "assessment." Now this issue has been settled by the Supreme Court in the case of Samrat International (P) Ltd. v. Collector of Central Excise, Hyderabad, reported in (1991) 31 ECC 207 (SC). After the old Rule 11 has been repealed, Section 11B has been introduced. Now relevant Section 11B is in force which is similar to old Rule 11. Relevant extract from Section 11B is reproduced below :- (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date.
Provided that the limitation of six months shall not apply where any duty has been paid under protest."Samrat International (P) Ltd. v.Collector of Central Excise, Hyderabad, reported in (1991) 31 ECC 207 (SC) had the occasion to deal with the matter which was falling under Section 11B. In the matter before the Supreme Court, the assessee had filed the classification list on 1st April, 1985 and the classification list was approved on 3rd June, 1985. The clearance of goods was between 1st April, 1985 to 3rd June, 1985 under provisional assessment and the assessee had filed RT-12 returns for April, 1985 on 8th May, 1985 and the assessment was completed on 29th October, 1985 and the refund claim was filed on 30th October, 1985. The Supreme Court had held that limitation starts from the date of final assessment in case of payment under provisional assessment. Paras No. 6, 7, 8, 9 and 10 from the Supreme Court's judgment are reproduced below :- "6. Chapter VII-A of the Rules relates to removal of excise goods on determination of duty by producers, manufacturers or private warehouse licensees. Under Rule 173B, every assessee shall file with the Proper Officer for approval a list in prescribed form showing full description of all excisable goods or products manufactured, the rate of duty leviable on such goods and such other particulars as the Collector may direct. The Proper Officer shall, after such enquiry as he deems fit, approve the list with such modifications as are considered necessary and return one copy of the approved list to the assessee who shall unless otherwise directed by the Proper Officer determine the duty payable on the goods intended to be removed in accordance with such list. All clearance shall be made only after the approval of the list by the Proper Officer. Sub-rule (2-A) of Rule 173B provides as under : "(2-A) All clearances shall, subject to the provisions of Rule 173CC, be made only after the approval of the list by the Proper Officer. If the Proper Officer is of the opinion that on account of any inquiry to be made in the matter or for any other reason to be recorded in writing there is likely to be delay in according the approval, he shall, either on a written request made by the assessee or on his own accord, allow such assessee to avail himself of the procedure prescribed under Rule 9B for provisional assessment of the goods." "7. Where the assessee disputes rate of duty approved by the Proper Officer in respect of goods, he may have to give an intimation to that effect to such officer and to pay duty under protest at the rate approved by such officer. When the dispute about the rate of duty has been finalised or for any other reason affecting rates of duty, a modification of the rate or rates of duty is necessitated, the Proper Officer shall make such modification and inform the assessee accordingly. Under Rule 173C, the assessee shall file with the Proper Officer a price list in prescribed form. Prior approval of the price list by the Proper Officer is necessary in the specified cases. Here also, sub-rule (5) of Rule 173C provides : "(5) Subject to the provisions of Rule 173CC, an assessee specified in sub-rule (2) shall not clear any goods from a factory, warehouse or other approved place of storage unless the price list has been approved by the Proper Officer. In case the Proper Officer is of the opinion that on account of any enquiry to be made in the matter or for any other reasons to be recorded in writing, there is likely to be delay in according approval, he shall either on a written request made by the assessee or of his own accord allow such assessee to avail himself of the procedure prescribed under Rule 9B for provisional assessment of the goods." "8. Under Rule 173CC, assessee may remove goods in certain cases pending approval by the Proper Officer of the classification of price list. Rule 173F provides that where the assessee has complied with the provisions of Rules 173B, 173D and where applicable 173C, 173CC, he shall himself determine his liability for the duty due on the excisable goods intended to be removed and shall not, except as otherwise expressly provided, remove such goods unless he has paid the duty as determined. Under Rule 173G, every assessee shall keep an account-current with the Collector. This rule lays down the procedure which is to be followed by the assessee for payment of duty. According to sub-rule (3) of Rule 173G, within five days after the close of each month every assessee shall file with the Proper Officer a monthly return in the prescribed form showing the quantity of the excisable goods manufactured, duty paid on such quantity and other particulars. The Proper Officer makes an assessment as provided under Rule 131-I on the basis of the information contained in the return and after such further enquiry as he may consider necessary, assess the duty due on the goods removed and the assessment is completed. The duty determined and paid by the assessee under Rule 173F shall be adjusted against the duty assessed and where the duty so assessed is more than the duty determined and paid, the assessee shall pay the deficiency by making a debit in the current account within 10 days of the receipt of copy of the return and where such duty is less, the assessee shall take credit in the account-current for the excess." "9. This is the scheme for the payment of duty for clearance of goods by the manufacturers. This procedure is known as self-removal procedure. There will be no time-bar for refund if the duty is paid under protest. The period of 6 months is prescribed in other cases.
As we have already seen, Section 11B says that the period of 6 months "in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof. In this case, the classification list filed by the appellant for the period 1-4-1985 to 27-4-1985 was not approved till 3-6-1985. From the provisions of Rules 173B, 173C and 173CC, which we have set out earlier, it will be seen that clearances can be made only after the approval of the list by the particular officer. However, if there is likely to be delay in according the approval the officer can allow the assessee to avail himself of the procedure prescribed under Rule 9B for provisional assessment of the goods. In the present case between 1st April, 1975 (sic) when the classification list was filed and 3rd June, 1985 when the list was approved, the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account. The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned. This is the procedure prescribed under Rule 9B except for the circumstance that no bond as provided in Rule 9B is required in a case where the personal ledger account is maintained for the clearance of the goods, since there is always a balance in the account-current sufficient to cover the duty that may be demanded on the goods intended to be removed at any time. In these circumstances, the clearance of goods made by the appellant between 1st April and 3rd of June, 1985 were in accordance with the procedure for provisional assessment. In such a situation clause (e) of para (B) of the Explanation under Section 11B will be attracted.
In this case the R.T. 12 Return for the month of April, 1985 was filed on 8-5-85 and the same was assessed on 29-10-1985. It is, therefore, only from the date of this assessment that time-bar in Section 11B will operate. In the present case the refund application had been filed on the 30th of October, 1985. It cannot, therefore, said to be time-barred." "10. We, therefore, accept this contention of the appellant. The appeal has, therefore, to be allowed holding the appellant is entitled to the full amount and there is no bar of limitation as found by the Tribunal. We, therefore, allow the appeal. In the facts and circumstances of the case there will be no order as to costs." 11. In view of the legal position discussed above, we are of the view that once the assessment is provisional, it is provisional for all purposes. We follow the findings of the Hon'ble Supreme Court in the case of Samrat International (P) Ltd. v. Collector of Central Excise, Hyderabad, reported in (1991) 31 ECC 207 (SC) and relevant paras have already been reproduced above and accordingly, we hold that the refund applications in the above matters were filed before the expiry of limitation in view of our above observations. Accordingly, we do not find any merit in the revenue's appeals. The appeals are dimissed.