ivil Appeal No 4460 Of 1988
From the Order dated 154
1988 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal No EAppeal No 2225 of 1986 A 3 V Sreedharan VJ Francis and NM Popli for the Appel lant
Ashok H Desai Solicitor General Dalip Tandon and P Parmeshwaran for the Respondent
The Judgment of the Court was delivered by FATHIMA BEEVI J
This is an appeal under section 35L of the 
The appeal is di rected against the order dated 1541988 of the Customs Excise and Gold Control Appellate Tribunal New Delhi
The appellant is the manufacturer of Hacksaw blades and Bandsaw Blades failing under Tariff Item No 51 Aiv of the Central Excise Tariff
The appellant filed a classification list as per Rule 173B of the Central Excise Rules 1944 on 2631985 in respect of their products furnishing the tariff rate of 15 Ad valorem by mistake instead of furnishing the effec tive rates of duty as per Notification No8585 CE dated 1731985
The aggregate value of the clearance in the preceding year ie 1984 85 did not exceed Rs75 lakhs
In the case of first clearance upto an aggregate value not exceeding Rs75 lakhs the effective rates of duty is nil and in the case of next clearance of Rs75 lakhs the duty is 375 Ad valorem
The Assistant Collector of Central Excise Hyderabad approved the Tariff rate 15 Ad valorem on 361985 instead of the above effective rates as the appellant did not claim the exemption as per Notification No8585 CE dated 1731985 due to ignorance
A revised classification list with the effective rates in respect of the products with retrospective effect from 2631985 was filed on 31101985
The revised classification list was approved
The appellant claimed that they had paid excess Rs25517255 from 141985 to 3181985 as excise duty
They made an application for refund as per rule under sec tion 11B of the on 30101985
The Assistant Collector of Central Excise by his order dated 13121985 sanctioned the refund claim only partly
For the period from 141985 to 2741985 the refund claim was rejected on the ground that the same was time barred
The Assistant Collector held that the refund claim for the period 141985 to 2741985 was time barred for the reason that under section 11B the relevant date  for preferring the claim for a case such as that of the appellant was the date of payment of duty and according to him the duty had been paid by adjustment in the personal ledger account as and when goods were removed
The plea of the appellant is that mere debiting in the personal ledger account should not be taken as the starting point for 4 limitation and the relevant date should be the date on which RT 12 Returns which are filed on a monthly basis are as sessed
The order of the Assistant Collector was confirmed in the appeal by the Collector of Central Excise Appeals
The further appeal to the Tribunal was also unsuccessful
The question that arises for decision in the appeal is as to the starting point of limitation for filing an appli cation under section 11B of the 
Section 11B so far as it is material reads as under 11B Claim for refund of duty 1 Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date
Provided that the limitation of six months shall not apply where any duty has been paid under protest
Explanation For the purposes of this section B relevant date means a to d         e 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 f in any other case the date of payment of duty
 The appellant s contention before the authorities was that the date of assessment would be the date of payment of duty within the meaning of clause f above
We agree with the learned Solicitor General that this argument is not tenable
Where an assessee maintains a personal ledger account duty is paid by way of debit therein and goes to reduce the amount of deposit paid by the assessee
It is 5 not a mere adjustment entry it is effective payment
Before us however learned counsel for the assessee has raised an alternative contention
According to the appellant it is clause e which is applicable in the case whereas the contention of the respondent is that clause f is attract ed
To understand this argument it is necessary to refer to Self removal  procedure under which the appellant cleared the goods
Chapter VII A of the Rules relates to removal of excise goods on determination of duty by producers manufacturers of private warehouse licensees
Under Rule 173B every assessee shall file with the Proper Officer for approval a list in prescribed form showing full description of all excisable goods or products manufactured the rate of duty leviable on such goods and such other particulars as the Collector may direct
The Proper Officer shall after such enquiry as he deems fit approve the list with such modifi cations as are considered necessary and return one copy of the approved list to the assessee who shall unless otherwise directed by the Proper Officer determine the duty payable on the goods intended to be removed in accordance with such list
All clearance shall be made only after the approval of the list by the Proper Officer
Sub rule 2 A of Rule 173B provides as under 2 A All clearances shall subject to the provisions of rule 173CC be made only after the approval of the list by the proper officer
If the proper officer is of the opinion that on account of any inquiry to be made in the matter or for any other reason to be recorded in writing there is likely to be delay in according the approval he shall either on a written request made by the assessee or on his own accord allow such assessee to avail himself of the procedure prescribed under rule 9B for provisional assess ment of the goods
 Where the assessee disputes rate of duty approved by the Proper Officer in respect of goods he may have to give an intimation to that effect to such officer and to pay duty under protest at the rate approved by such officer
When the dispute about the rate of duty has been finalised or for any other reason affecting rates of duty a modification of the rate or rates of duty is necessitated the Proper Officer shall make such modification and inform the assessee accord ingly
Under Rule 173C the assessee shall file with the Proper Officer a price list in prescribed form
Prior ap proval of the price list by the 6 Proper Officer is necessary in the specified cases
Here also sub rule 5 of rule 173C provides 5 Subject to the provisions of rule 173CC an assessee specified in sub rule 2 shall not clear any goods from a factory warehouse or other approved place of storage unless the price list has been approved by the proper officer
In case the proper officer is of the opinion that on account of any enquiry to be made in the matter or for any other rea sons to be recorded in writing there is likely to be delay in according approval he shall either on a written request made by the assessee or of his own accord allow such asses see to avail himself of the procedure prescribed under rule 9B for provisional assessment of the goods Under Rule 173CC assessee may remove goods in certain cases pending approval by the Proper Officer of the classi fication or price list
Rule 173F provides that where the assessee has complied with the provisions of Rules 173B 173D and where applicable 173C 173CC he shall himself determine his liability for the duty due on the excisable goods intended to be removed and shall not except as other wise expressly provided remove such goods unless he has paid the duty as determined
Under Rule 173G every assessee shall keep an account current with the Collector
This rule lays down the procedure which is to be followed by the assessee for payment of duty
According to sub rule 3 of Rule 173G within five days after the close of each month every assessee shall file with the Proper Officer a monthly return in the prescribed form showing the quantity of the excisable goods manufactured duty paid on such quantity and other particulars
The Proper Officer makes an assessment as provided under Rule 1731 on the basis of the information contained in the return and after such further enquiry as he may consider necessary assess the duty due on the goods removed and the assessment is completed
The duty determined and paid by the assessee under Rule 173F shall be adjusted against the duty assessed and where the duty so assessed is more than the duty determined and paid the assessee shall pay the deficiency by making a debit in the current account within 10 days of the receipt of copy of the return and where such duty is less the assessee shall take credit in the account current for the excess
This is the scheme for the payment of duty for clearance of goods by the manufacturers
This procedure is known as self removal procedure
There will be no time bar for refund if the duty is paid under 7 protest
The period of 6 months is prescribed in other cases
As we have already seen section 1 1B says that the period of 6 months 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
In this case the classification list filed by the appellant for the period 141985 to 2741985 was not approved till 361985
From the provisions of Rules 173B 173C and 173CC which we have set out earlier it will be seen that clearances can be made only after the approval of the list by the particular officer
However if there is likely to be delay in according the approval the officer can allow the assessee to avail himself of the procedure pre scribed under Rule 9B for provisional assessment of the goods
In the present case between 1st April 1975 when the classification list was filed and 3rd June 1985 when the list was approved the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account
The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned
This is the procedure prescribed under Rule 9B except for the circum stance that no bond as provided in Rule 9B is required in a case where the personal ledger account is maintained for the clearance of the goods since there is always a balance in the account current sufficient to cover the duty that may be demanded on the goods intended to be removed at any time
In these circumstances the clearances of goods made by the appellant between 1st April and 3rd of June 1985 were in accordance with the procedure for provisional assessment
In such a situation clause e of para B of the Explanation under section 11B will be attracted
In this case the RT 12 Returns for the month of April 1985 was filed on 851985 and the same was assessed on 29101985
It is therefore only from the date of this assessment that time bar in section 11B will operate
In the present case the refund application had been filed on the 30th of October 1985
It cannot therefore said to be time barred
We therefore accept this contention of the appellant
The appeal has therefore to be allowed holding the appellant is entitled to the full amount and there is no bar of limi tation as found by the Tribunal
We therefore allow the appeal
In the facts and circumstances of the case there will be no order as to costs
TNA Appeal allowed


Summary:
In exercise of the powers conferred by section 12 of the Madhya Pradesh General Sales Tax Act 1958 the State Govern ment issued a notification dated 23101981 exempting the specified class of dealers who had set up industry in any of the specified districts of Madhya Pradesh and had commenced production after 1st April 1981 from payment of tax under the said Act for a specified period subject to certain restrictions and conditions
However when the assesses approached the Director of Industries for the certificate of exemption it was denied to them on the ground that the industries run by them were traditional industries which were not eligible for exemption
The assesses went to the court and urged that the con cept of traditional industries was one unspecified in the notification and that the authorities had no jurisdiction to travel outside the terms of the notification and import extraneous considerations to deny the assesses an exemption they were entitled to under the notification
The State on the other hand relied on the provisions of the MP Deferment of payment of Tax Rules 1983
notified on 1983 in particular rule 13 thereof and on certain instructions that had been issued by the Government on 1211983 pertaining to the grant of certificate of eligi bility to new industrial units claiming exemption from or deferment of payment of sales tax
The assessee s claim for exemption from sales tax was accepted by the Division Bench of the High Court in the case of GS Dhall  Flour Mills and following it in the case of Mohd Ismail
The Division Bench took the view that these rules and instructions had no relevance to the claim for exemption put forward under the notification of 23101981 and that in any event the executive instructions could not override the provisions of the statutory notification
591 Subsequent to the decision of the Division Bench the State Government issued a notification on 371987 intended obviously to overcome the effect of the said decision
Subsequently however a Full Bench of the High Court in the case of Jagadamba Industries disapproved the view taken by the Division Bench in GS Dhall case
The Full Bench attached importance to the rules and instructions referred to above and relied considerably on his history of the sales tax levy in the State as furnishing proper and necessary background in which the terms of the notification of 23101981 had to be read and interpreted
The Full Bench after considering the scheme and in structions of the Government came to the conclusion that the scope of the exemption notification of 1981 was not intended to be wider than that of the concessions granted earlier and that the 1981 notification was intended to bring about only a change in the mode of relief to the same categories of industries as were covered by the earlier schemes
The contention that instructions could not override the effect of the statutory notification was repelled by the Full Bench on the ground that the validity and effectiveness of the instructions could be supported by reference to Article 162 of the Constitution as filling up a lack of guidelines in the notification
The Full Bench considered the 1983 instructions to be conclusive on two grounds on the doctrine of contemporanea exposition and on the principle that executive instructions could always be issued to supplement statutory instruments so as to fill up areas on which the latter were silent
The State aggrieved by the judgment of the Division Bench in the two cases and the assessee by the judgment of the Full Bench in the other case have filed the appeals and Special Leave Petitions
Before this Court the parties reiterated their submis sions in support of either of the two judgments
The main submission on behalf of the State was that since the 1981 notification did not set out the conditions on which and the procedure in accordance with which the Director of Industries was to issue the eligibility certificate the earlier scheme of subsidyloan and its procedure should be read into the notification for this purpose
This contention was contested by the assesses inter alia on the ground that the earlier scheme and the exemption now 592 proposed were totally different in their object and scope
Dismissing the appeals of the State and allowing the appeals preferred by the assesses this Court while observ ing that the Division Bench laid down the correct law and not the Full Bench HELD 1 The 1981 notification does not expressly or even by necessary implication exclude traditional indus tries from its scope
2 Prima facie the Director of Industries cannot refuse the exemption on a consideration not specified in the notification
All the conditions for exemption have to be and are set out in the notification itself and all that the Director of Industries has to do is to satisfy himself that those conditions are fulfilled he cannot travel beyond the terms of the notification
3 Even granting that the 1981 policy was to replace the earlier subsidyloan by an exemption it does not neces sarily follow that the units intended to be covered by the new scheme were only those that were covered by the earlier scheme and that no wider exemption was contemplated
4 No factual foundation has been laid to establish the hypothesis that the exemption conferred in 1981 was to be a mere extension or substitution of the benefits conferred earlier
5 The notification does not authorise the Director of Industries to say that though the applicant fulfill the terms of the notification
he will not grant the eligibility certificate becauseUnder the previously prevalent schemes he could not issue an eligibility certificate to tradition al industries
For granting a certificate that the appli cant is eligible for exemption under the notification the director has to look to the conditions set out in the noti fication and nowhere else
Changing definition of eligibility for exemption also shows that there was no common or identical group of benefi ciaries intended under the various instructions or notifica tions and that each set of instructions or notification issued from time to time defined only the categories exempt ed from its purview and nothing else
The exemption list under one was not meant to be carried over into another
Hans Gordon Dan v HH
Dave referred to
593 7 The 1983 document is not a statutory instrument neither a notification nor a rule framed under the statute
8 It is true that the principle of contemporanea exposition is invoked where a statute is ambiguous but is shown to have been clearly and consistently understood and explained by the administrators of the law in a particular manner
But to apply the doctrine to widen the ambit of the statutory language would however virtually mean that the State can determine the interpretation of a statute by its ipsi dixit
That certainly is not and cannot be the scope of the doctrine
The doctrine can be applied to limit the State to its own narrower interpretation to favour of the subject but not to claim its interpretation in its own favour as conclusive
Varghese vs 1
TO  and Doypack Sys tems P Ltd vs Union of India   referred to
9 Executive instructions can supplement a statute or cover areas to which the statute does not extend
But they cannot run contrary to statutory provisions or whittle down their effect
10 There is nothing in the language of the notifica tion to suggest that anything further is needed to enable the Director of Industries to grant the exemption
Without the guidelines the requirement for an exemption certificate would not become an empty formality
11 If the statutory notification is construed as permitting the State by rules or executive instructions to prescribe other conditions for exemption whether new or based on past practice
it is liable to be struck down on the ground of impermissible delegation of legislative power to the executive
This certainly they cannot do
12 The 3787 notification cannot be treated as one merely clarifying an ambiguity in the earlier one and hence capable of being retrospectively it enacts the rescission of the earlier exemption and hence can operate only pro spectively
It cannot take away the exemption conferred by the earlier notification