C.T.A. Piliai, Member (T)

1. The brief facts of the case are that on 23-11-1982 the appellant applied to the Assistant Collector of Central Excise, Erode Dn. for refund of Rs. 57,941.56 being the duty paid on burnt lime and cyclone dust cleared during the period 5-3-1982 to 26-5-1982, The Assistant Collector issued a notice to the appellants asking them to show cause why in terms of Section 11B of the Central Excises Salt Act, 1944 the refund should not be limited to the payments made from 24-5-1982 to 26-5-1982, the rest of the amount having been paid beyond six months from the date of making of the claim. The appellant explained that the delay of over six months was due to enormous clerical work involved in getting ready documents, such as gate passes, abstract/extracts from P.L.A. etc. and requested for condonation. The Assistant Collector held that whatever be the reasons for the delay the provisions of Section 11B are specific in respect of time limit. Accordingly, he rejected the claim to the extent of Rs. 55,315.64 as barred by limitation under Section 11B of the Act. When the matter was agitated in appeal before the Collector of Central Excise (Appeals) he held that the relevant date for purposes of computing the time limit is the date of payment of duty; there was therefore no scope for computing the time limit with reference to the date completion of the assessment memo in the monthly R.T. 12 return, in which the clearances in respect of the period were entered. He accordingly rejected the appeal.

2. Before us the advocate for the appellant urged that Government have accepted in principle that excise duty should not be levied on goods leviable to duty under Tariff Item 68 if transferred from one factory to another of the same manufacturer; hence the appellants are not liable to pay the duty on such transferred goods falling under Item 68 of the Tariff. Without prejudice to this contention it was also urged that payment of duty at the time of removal of goods is provisional till, the R.T. 12 is approved and finalised. In support of the above two points the advocate for the appellant referred to Section 3 of the Act which provides for the levy and collection of duties of excise in such manner as may be prescribed. Section 11A of the Act which deals with recovery of duties not levied or not paid or short levied or short paid etc. also defines relevant date for purposes of making a claim on the assessee. Explanations under Section 11A 3(ii)(a)(A) and (B) specifically provide for the calculation of the levy from the date of filing of the R.T. 12 return or the due date of such filing. However, in defining the 'relevant date' in the Explanation B(c) to Section 11B it is specifically provided,

"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."

It was the advocate's claim that payments under the Self Removal Procedure made by a manufacturer at the time of removal of the goods are all provisional. Rule 2(ia) of the C.E. Rules, 19M (hereinafter referred to as the Rules) provides that assessment is that made by the proper officer. Hence any determination of duty made by the assessee is not an assessment as envisaged under Rule 2(ia), Rule 2(v) defines 'duty' as the duty payable under Section 3 of the Act. This duty, the advocate urged, is the one found payable as a result of assessment by a proper officer. Rule 173F provides that the assessee himself shall determine the duty due; Rule 173G (1) states that he shall pay the duty determined by him. However Rule 173-1(1) reads inter alia,

"The proper officer shall on the basis of the information contained in the return filed by the assessee under Sub-rule (3) of rule 173G and after such further inquiry as he may consider necessary, assess the duty due on the goods removed and complete the assessment memorandum on the return. A copy of the return so completed shall be