M. Santhanam, Member (J)

1.Aggrieved by the rejection of their appeal by the Appellate Collector by Order-in-Appeal No. 1138/Calcutta/81 dated 11-8-1981, the appellants have filed a Revision Application before the Government of India which, on transfer to the Tribunal, is being treated as an appeal.

2. The appellants carry on the business of processing blended and compounded lubricating oil in their factory at Calcutta. The appellants have cleared lubricating oil during 10-10-1975, 21-10-1975 and 31-10-1975 after payment of duty under the Central Excise Tariff Item 11 -B. The appellants were not aware that no excise duty was leviable on the said blended or compounded lubricating oil which was processed out of duty paid blended or compounded lubricating oil. The appellants also rely on the trade notices issued by the Calcutta Collectorate dated 29-4-1974 and 29-4-1976. The appellants submitted their claim for refund of Rs. 7,953.59p. on 30-5-1977. The Assistant Collector of the Central Excise, Calcutta, by his order dated 29-12-1977, rejected their claim as barred by limitation under Rule 11 of Central Excise Rules. The Appellate Collector confirmed the order.

3. In the course of his arguments Mr. P.R. Biswas, Consultant, submitted that the claim was not barred by limitation. He stated that RT-12 for October, 1975 was provisionally assessed on 9-8-1976. But there was a final assessment only on 5-3-1980 as per the communication of the Superintendent, Central Excise, Range 2, Calcutta North. The learned Consultant relied on the Government of India decision in 1977-ELT-127 wherein it is stated that the debit to PLA was in the nature of deposit of duty without which the goods not be removed from the factory and that the actual assessment of the duty is made only on the RT-12. In such an event the date of finalisation of the assessment is the relevant date for computing the time limit. The Consultant pointed out that the lower authorities had passed the orders without adverting to the fact that there was only a provisional assessment.

4. Mr. V. Lakshmi Kumaran, SDR, submitted that Rule 11, as it stood then, did not provide for refund claims arising out of provisional assessment finalisation. The time-limit ran from the date of payment of duty. He said that the appellants herein had not protested against classification and hence it was not open to them to take advantage of their own omission. The provisional assessment was only in respect of valuation. He further stated that there was nothing in the Act or the Rules to enable refund of duty when there was no dispute regarding the classification and the provisional assessment was in respect of valuation. He urged that there was no provision in the rule for computing the time-limit for claiming refund from the date of finalisation of the RT. 12.

5. It is common case that the appellants have paid duty on 10-10-1975, 21-10-1975 and 31-10-1975 respectively. The quantum of the amount claimed as refund, namely, Rs. 7,953.59p. is also not questioned. The only point for determination would be whether the claim for refund made on 30-5-1977 was barred by limitation. On the facts of this case, we find from the RT. 12 (Annexure-D) in the paper book filed by the appellants, the assessment was made provisionally. The endorsement reads that the duty on the goods cleared under Gate Pass No. 517 to 575 and included in the Return had been assessed provisionally under Rule 9 (B) and the provisions of the said rule would apply for recovery of deficiency in or refund of excise duty. (The learned Sr. D. R. after perusing the RT. 12 return confirmed that the assessment was provisional). On 5-3-1980, a communication was sent by the Superintendent, Central Excise to the appellants stating that the Returns were finalised "by assessment ad valorem at the differential rate". It is well settled that the term 'levy' is of wider import than the term 'assessment'. In this case, provisional assessment was made on 9-8