Jay Chemical Industries Vs. Collr. of Central Excise - Court Judgment

Excerpt:
1. common appellant in these appeals is absent in spite of notice of hearing.2. on the assessments made by the superintendent of central excise on six rt 12 returns filed by the appellant, six appeals were filed before the collector (appeals) who dismissed the same by a common order.appellant initially filed three appeals though appellant was required to file three more supplementary appeals. accordingly appellant filed e/3315-3317/88-a with application seeking condonation of delay. it was a mere omission on the part of the appellant not to have filed six appeals. we therefore condone the delay, in filing three later appeals.3. the contention raised by the appellant in the appeals before the collector (appeals) was that the price approved by the proper officer included interest on receivables and since such interest cannot be added to the assessable value in finalising the assessment on rt 12 returns the superintendent should have excluded the same from the assessable value and ordered refund or adjustment of excess duty paid.collector (appeals) dismissed the appeals on the ground that appellants should have filed refund claims. these orders are now challenged.4. we do not agree with the view taken by the collector (appeals) that an assessee entitled to file refund claim cannot file an appeal against an order of assessment. under section 35 of central excise act, 1944 any person aggrieved by any decision or order passed by an officer lower in rank than a collector may appeal to the collector (appeals) within three months from the date of communication to him of such decision or order. in the present case, the completion of assessment by the superintendent on the rt 12 return filed by the appellants is an assessment decision. the collector (appeals) fell in error in stating that at the rt 12 stage, the superintendent has only a limited function of ensuring that the assessments are in accordance with the approved classification list and price list and deciding the dispute on that basis. here the appellants were paying duty on the basis of prices declared in their gate passes, having been permitted to do so by the jurisdictional assistant collector as provided under rule 173c(11) of the central excise rules, 1944 and hence did not file price lists. rule 173c(11) of the rules requires that where the price declared on the assessee's document like gate pass, challan or advice note did not represent the value as determined under section 4 of central excise act, 1944, the proper officer may, after such further inquiry, as considered necessary, reassess the duty due and thereupon the assessee shall pay the deficiency, if any, by debit in his account-current or, in case of excess payment, take credit of the amount paid in excess, in the manner prescribed in sub-rule (2) of rule 173-1. thus reassessment of duty is provided for under rule 173c(11). in the present case, such reassessment was called for in view of the supreme court's decision in the bombay tyre international ltd. case and the specific provisions of section 4(4)(d)(ii) of the act which provide for the exclusion of the element of duty from the price. as the superintendent had not carried out the reassessment in the manner provided for under rule 173(1(11), the appellant became an aggrieved person within the meaning of section 35 and hence was entitled to file an appeal which was what he did. the collector (appeals) should have decided the appeal directing the proper officer to examine the contention raised by the appellant.5. for the reasons indicated above, we set aside the impugned orders of assessment and appellate orders and direct the appropriate authority to pass fresh assessment orders after considering the plea of the appellant that the assessable value should not include interest on receivables and duty payable should be recalculated and if excess duty is seen to have been paid give appropriate relief to the appellant.

Judgment:
1. Common appellant in these appeals is absent in spite of notice of hearing.

2. On the assessments made by the Superintendent of Central Excise on six RT 12 Returns filed by the appellant, six appeals were filed before the Collector (Appeals) who dismissed the same by a common order.

Appellant initially filed three appeals though appellant was required to file three more supplementary appeals. Accordingly appellant filed E/3315-3317/88-A with application seeking condonation of delay. It was a mere omission on the part of the appellant not to have filed six appeals. We therefore condone the delay, in filing three later appeals.

3. The contention raised by the appellant in the appeals before the Collector (Appeals) was that the price approved by the proper officer included interest on receivables and since such interest cannot be added to the assessable value in finalising the assessment on RT 12 Returns the Superintendent should have excluded the same from the assessable value and ordered refund or adjustment of excess duty paid.

Collector (Appeals) dismissed the appeals on the ground that appellants should have filed refund claims. These orders are now challenged.

4. We do not agree with the view taken by the Collector (Appeals) that an assessee entitled to file refund claim cannot file an appeal against an order of assessment. Under Section 35 of Central Excise Act, 1944 any person aggrieved by any decision or order passed by an officer lower in rank than a Collector may appeal to the Collector (Appeals) within three months from the date of communication to him of such decision or order. In the present case, the completion of assessment by the Superintendent on the RT 12 Return filed by the appellants is an assessment decision. The Collector (Appeals) fell in error in stating that at the RT 12 stage, the Superintendent has only a limited function of ensuring that the assessments are in accordance with the approved classification list and price list and deciding the dispute on that basis. Here the appellants were paying duty on the basis of prices declared in their Gate Passes, having been permitted to do so by the jurisdictional Assistant Collector as provided under Rule 173C(11) of the Central Excise Rules, 1944 and hence did not file price lists. Rule 173C(11) of the Rules requires that where the price declared on the assessee's document like Gate Pass, Challan or Advice Note did not represent the value as determined under Section 4 of Central Excise Act, 1944, the proper officer may, after such further inquiry, as considered necessary, reassess the duty due and thereupon the assessee shall pay the deficiency, if any, by debit in his account-current or, in case of excess payment, take credit of the amount paid in excess, in the manner prescribed in Sub-rule (2) of Rule 173-1. Thus reassessment of duty is provided for under Rule 173C(11). In the present case, such reassessment was called for in view of the Supreme Court's decision in the Bombay Tyre International Ltd. case and the specific provisions of Section 4(4)(d)(ii) of the Act which provide for the exclusion of the element of duty from the price. As the Superintendent had not carried out the reassessment in the manner provided for under Rule 173(1(11), the appellant became an aggrieved person within the meaning of Section 35 and hence was entitled to file an appeal which was what he did. The Collector (Appeals) should have decided the appeal directing the proper officer to examine the contention raised by the appellant.

5. For the reasons indicated above, we set aside the impugned orders of assessment and appellate orders and direct the appropriate authority to pass fresh assessment orders after considering the plea of the appellant that the assessable value should not include interest on receivables and duty payable should be recalculated and if excess duty is seen to have been paid give appropriate relief to the appellant.