ORDER
S.S. Kang, Member (J)
1. The appellants filed this appeal against the order-in-appeal dated 30-6-98 passed by the Commissioner of Central Excise (Appeals). In the impugned order, the refund claim, filed by the appellants, was rejected as time-barred.
2. Ld. Counsel, appearing on behalf of the appellants, submits that during the period from December, 90 to June, 92, the appellants cleared motor vehicles on payment of duty. Out of these duty-paid vehicles, 42 vehicles were returned by the dealers on account of some defects and transit damages. These 42 vehicles were received in the factory of the appellants under Rule 173H of the Central Excise Rules and D-3 intimations were also filed. After undertaking the necessary repairs, these 42 motor vehicles were again cleared on payment of duty.
3. Ld. Counsel submits that under Rule 173H, in respect of repaired vehicles, no duty was required to be paid but due to error in programming in the computer software, the appellants paid excise duty twice on these 42 vehicles. He submits that on detection of the error, the refund claim was filed in respect of duty paid on 42 motor vehicles.
4. He submits that the assessment of motor vehicles, cleared by the appellants, was done on provisional basis under Rule 9B of the Central Excise Rules. The contention of the appellants is that as the assessment was provisional, therefore, their refund claim cannot be considered as time barred. He submits that the provisional assessment has not been finalised so far and it is a settled proposition of law that once an assessment is held to be provisional, for whatever reason and whatever account, the assessment and duty payment is treated as provisional for all purposes. For this, he relied upon the following decisions :
1. 1991 (55) E.L.T. 592 – C.C.E. v. P.M.T. Machines Tools;
2. 1997 (94) E.L.T. 495 – C.C.E. v. India Tyre & Rubber Co. Ltd.;
3. 1998 (100) E.L.T. 522 – Wipro Ltd. v. C.C.E.;
4. 1997 (23) R.L.T. 798 – Asian Paints (India) Ltd.;
5. 1998 (24) R.L.T. 124 – Asiatic Oxygen & Acetylene Co. Ltd. v. C.C.E;
6. 1998 (25) R.L.T: 906 – Orient Pre-Stressed Products (P) Ltd. v. C.C.E.
5. The appellants also contended that the Hon’ble Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 in para 95A of the judgment held that in the case of provisional assessments, the claim of the assessee cannot be held to be time-barred. He also submits that duty was paid under protest second time on these 42 vehicles. He, therefore, prays that the appeal be allowed.
6. Ld. D.R. appearing on behalf of the Revenue submits that it is a case of double-duty paid on the vehicles and is governed by the provisions of Section 11B of the Act. He submits that the vehicles were cleared on payment of duty second time during the period from 15-4-91 to 13-3-92 and the refund was filed on 21-5-93. Therefore, the refund is filed after six months from the date of payment of duty. Ld. D.R. submits that the assessment of duty was provisional under Rule 9B of the Central Excise Rules and the assessment can be provisional for determination of valuation of excise goods or for determination of correct classification. His submission is that it is not the case of correct valuation or correct classification of the motor vehicles. He submits that the appellants admitted that due to some error in their software, paid duty twice on the same vehicles. Therefore, it is a refund under Section 11B of the Central Excise Act. He submits that under Rule 173H of the Central Excise Rules, there is no requirement of payment of duty on the goods received in the factory for repair. He, therefore, reiterates the findings of the lower authorities.
7. Heard both sides.
8. In this case, the contention of the appellants is that motor vehicles were assessed to excise duty provisionally. Therefore, the refund claim cannot be rejected as time-barred. The provisions of Rule 9B of the Central Excise Rules provides that provisional assessments can be on two counts, one is for determination of valuation of excisable goods and second is for determination of correct classification. Therefore, the provisional assessment is only for classification and valuation of the goods which is not the present case. In the present case, as per the contention of the appellants, the central excise duty was paid twice on the same vehicles. Therefore, it is not the case of provisional assessment under Rule 9B of the Central Excise Rules.
9. The appellants paid duty during the period from 15-4-91 to 13-3-92 and filed a refund claim on 21-5-93, which is beyond the period of six months, as prescribed under Section 11B of the Central Excise Act. Section 11B of the Central Excise Act, at the relevant time, provides the period of six months from the relevant date for claiming refund and relevant date as mentioned in the Rule, is reproduced below :
“11(B) “relevant date” means –
(a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, –
(i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or
(ii) if the goods are exported by land, the date on which such goods pass the frontier, or
(iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India ;
(b) in the case of goods returned for being remade, refined, reconditioned or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid ;
(c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory;
(d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction;
(e) 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;
(f) in any other case, the date of payment of duty.”
The provisions of Section 11B provides that refund claim can be filed within six months from the payment of duty. In view of the above discussion, we find no infirmity in the impugned order. The appeal, filed by the appellants, is rejected.