ORDER
U.L. Bhat, J. (President)
1. Shri C.T. Varghese, Liaison Officer of respondent who is present prayed for adjournment on the ground that Shri P.S. Raman, Advocate is indisposed. It does not appear to us that Shri P.S. Raman has filed any Vakalatnama. We do not find it necessary to adjourn the appeal. We have heard Shri K. Srivastava, SDR for the Appellant Collector.
2. The dispute arose in relation to 12 refund claims preferred by the respondent on the ground that turnover tax and additional sales tax, as the case may be, had been paid out of the sale proceeds but not collected and could not be collected from the buyers and the duty referable to the element of turnover tax or additional sales tax has to be refunded. The Assistant Collector rejected the refund claims on the ground that element not included in the price cannot be deducted and on the ground that deduction had not been claimed in the price lists. Collector (Appeals) set aside the order directing the Assistant Collector to grant refund. This order is now challenged by the Department.
3. It is well-settled that turnover tax and additional sales tax cannot be collected from the buyers and therefore should not form part of assessable value for the purpose of quantifying duty. This is clearly a case where the respondent has paid excess duty and the claim for refund is legitimate. Shri K. Srivastava points out that out of the 12 refund claims referred to in the last paragraph of the order of the Assistant Collector, claims numbers 1 to 8 and 10 are clearly barred by limitation and part of the remaining claims may be barred. This aspect was not considered by either of the lower authorities and require consideration with reference to factual position. It is also for consideration to what extent Section 11B of the Central Excise Act, 1944 has an impact on the claims.
4. For the reasons aforesaid, we set aside the impugned order and remand the case to the jurisdictional adjudicating authority for decision afresh in accordance with law and the observation in this order, after giving the respondent an opportunity of hearing.