Judgment:
1. The common appellants in these two appeals are aggrieved by the rejection by the Assistant Collector of their refund claims and the refusal of the Collector of Central Excise (Appeals) to interfere.
2. Appellants manufacture industrial cables. These refund claims arise in regard to clearance of goods covered by three price lists dated 12-5-1980, 12-8-1980, 29-10-1980. Appellants claimed deductions of excise duty, Central sales tax and notional average freight from the cum duty contract price. The Assistant Collector approved the price disallowing three deductions claimed under orders passed on 12-2-1981,13-2-1981 and 22-10-1981 respectively. Appellants had not filed appeals against these orders. It appears the dispute between the parties in regard to disallowance of deduction on average freight on the 1979 price list was pending at that time. The Collector (Appeals) subsequently allowed the appellant's appeal allowing deduction on notional average freight. On 17-3-1983 appellants filed two refund claims of proportionate duty on the Excise, Central Sales Tax and average freight elements of the value of goods cleared on the basis of the three price lists of 1980. Assistant Collector rejected the refund claims except in regard to freight on the ground that approval order had become final and the Collector (Appeals) declined to interfere on the ground that the claims were barred by limitation.
3. We do not understand the law to be that unless the approval orders are successfully challenged in appeal, refund cannot be claimed under Section 11B of the Central Excises & Salt Act, 1944.
4. In regard to the question of limitation, the appellants contend that the assessments on the RT12 returns were made only provisional and the fina-lisation was on 30-12-1982 and 17-3-1983 respectively and the refund claims had been filed within six months of these dates and therefore within time.
5. Shri Jha submits that the records do not show that the assessment of the RT 12 returns were provisional and that finalisation was within six months from the date of refund claims. This ground based on the provisional nature of the assessment has been raised in the memorandum of appeal, though not specifically raised before the Collector (Appeals). In this view, we grant an opportunity to the appellants to establish that the original assessments were only provisional and the finalisation was made within six moths before the date of filing the refund claims.
6. Impugned orders are set aside and the refund claims are sent back to the Assistant Commissioner for fresh adjudication after giving an opportunity to the appellants to produce documents and after verifying whether the final assessments on monthly returns were made within six months of the dates on which the refund claims were filed.