Harish Chander, Vice-President

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 Excise (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 Excise 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, inasmuch 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 prov