(i) irrespective of whether or not the benefit of the exemption contained in the Notification No. 198/76, dated 16-6-1976, the assessable value of the goods in question has to be determined in accordance with the provisions of Section 4 of the Act and in such a determination, it would appear that an amount of Rs. 50,696.23 was erroneously refunded ;

(ii) the exemption was claimed in terms of the aforesaid Notification notwithstanding the approval of certain price lists filed by the Appellant earlier. The said price lists do not reflect the reduced price resulting from availing of the exemption. It was at the price approved that the goods were sold and not the reduced price in terms of the aforesaid Notification. Accordingly, the assessable value notwithstanding the applicability of the Notification was the price at which the goods were, in fact, sold ;

(c) in Appeal, the Adjudication order was confirmed and the aforesaid proceeding transferred to the Tribunal is the sequel.

2. By the provisions of the Finance Act, 1982, it was provided retrospectively from 1-10-1975, that it is only the reduced quantum of duty in terms of Notifications of exemption that is to be excluded in the computation of assessable value in terms of Section 4 of the Act, once the benefit of any such notification is availed of. Accordingly, if a reduced amount of duty had been paid by the Appellant, in terms of the Notification of exemption aforesaid, the assessable value cannot be determined by excluding anything more than such reduced quantum of duly from the normal price of the goods in question. This would imply, necessarily, an increase in the assessable value as determined originally after taking into account the benefit of the Notification of exemption in question. Since the price is to be reduced by a lesser amount to arrive at the assessable value. Consequently duty has to be necessarily paid on the increased assessable value.

3. Seeing that the aforesaid provision made with retrospective effect is a complete answer to the contentions raised by the Appellant, Shri Gopal Parsad, learned Consultant for the Appellant, submitted that the provision in question did neither provide for a reopening of an old case, where assessment had become final or the period of limitation for doing so. In his submission, although the provision became effective retrospectively, a refund that had become concluded could not be reopened by virtue of the said provision since no such power has been conferred upon any of the officers of the Department nor has any time-limit within which such proceedings can be reopened laid down in the aforesaid provision. Consequently, the provision cannot be so construed as to enable a reopening of a case of refund that had become final.

4. But the question is if the proceedings had become final in this case. As would appear from a recital of the facts, the refund made earlier was put in issue in an appropriate proceeding within the limitation prescribed and that proceeding was pending when the Amending Act (Finance Act, 1982) came into force with retrospective effect. It is futile in the circumstances, to contend that there is any reopening of an i