Per Shri P.C. Jain :

Since all the four appeals are connected, a common order is being passed. Briefly stated, the facts of the cases are as follows :-

1.1 The appellants herein were clearing the excisable goods manufactured by them on declaration of certain prices and claiming certain deductions in the price lists filed by them. The department, however, did not approve the price lists filed by the appellants. As a result, they were clearing their goods on prices as declared by them. Later on, the price lists were approved by the Assistant Collector of Central Excise, Calcutta "C" Division under his Order-in-Original allowing certain deductions towards freight, transit insurance, turnover taxes in terms of the Supreme Court's judgement in the Bombay Tyre International's case. Consequent to the approval of the price lists by the Assistant Collector in terms of the Order-in-Original, the RT-12 returns filed by the appellants herein during the period of pendency of approval of price lists from March, 1983 to February, 1986 were assessed by the Range Superintendent concerned. In the assessment memorandum of each RT-12 return, the Range Superintendent showed the excess amount of duty paid by the appellants for each of those months. However, he directed that for claiming the refund of the said amount, the appellants should file formal refund claims to the Assistant Collector in terms of Section 11B of the Central Excises and Salt Act, 1944, who is the competent Officer to sanction refund of duty paid in excess.

1.2 Since the RT-12 returns are assessed by the Superintendent in terms of rule 173I of the Central Excise Rules, 1944, the appellants on their understanding of the said rule took suo moto the credit of excess duty shown by the Superintendent on each of the returns. That amount comes to Rs. 7,68,245.49 in respect of Appeal E-66/87 and Rs. 14,650.60 in respect of appeal E-67/87.

1.3 Simultaneously, they filed appeals to the Collector (Appeals) against the Superintendent's direction of filing separate refund claims for the excess duty paid by them.

1.4 These appeals were rejected by the Collector (Appeals) vide his order dated 9/10-3-87; but nevertheless directing the appellants herein to file separate refund claims to the Assistant Collector. In other words, the Collector (Appeals), by his order dated 10.3.87 upheld the endorsement made by the Range Superintendent on RT-12 returns directing the appellants to file refund applications to the Assistant Collector.

1.5 Consequently, the appellants herein have come in two Appeals E-66/87 and E-67/87 against the said order dated 10.3.87 of the Collector (Appeals). Consequently, they also separately filed refund applications to the Assistant Collector for the credit taken by them suo moto for formal sanction thereof through the said refund applications. The refund applications have been rejected by the lower authority on the ground of time bar. Other set of appeals is the result of the rejection of the said refund applications.

2.1 Learned Advocate Shri P. Majumder has urged that pending approval of the price lists the appellants had been clearing the goods on the basis of prices declared in the price lists. Final approval of the price lists was given by the Assistant Collector subsequently. In the meantime, the appellants herein have been submitting RT-12 returns for each of the months for a period of about three years. On approval of the prices by the Assistant Collector, the said RT-12 returns were assessed. It was, therefore, the duty of the Range Superintendent assessing the RT-12 returns to direct the assessee (appellants) to take the credit of duty paid in excess. Rule 173I of the Central Excise Rules, 1944 did not stipulate filing of refund claim on such excess found by the Range Superintendent to have been paid by the assessee on assessment of RT-12 returns. In order to appreciate the contentions of the learned Advocate, rule 173I is reproduced below :-

Rule 173I. Assessment by