2010 (8) TMI 235 - HC - Central Excise

No excise duty refund without provisional assessment order; self-removal clearances treated as final, revenue appeal succeeds

HC held that refund of excess excise duty was not permissible as the assessee had not followed the statutory procedure for provisional assessment while ... Refund of excess duty paid - limitation - time limit u/s 11B - applicable where the prices are provisional and the self assessment is made by the assessee - procedure for removal of goods on provisional basis has not been followed - Held that:- Admittedly, while clearing the goods on payment of excise duty, the procedure for removal of goods on provisional basis has not been followed. The Apex Court in the case of Metal Forgings v. Union of India [2002 (11) TMI 90 - SUPREME COURT] has held that in the absence of order of provisional assessment, the clearance cannot be said to be on provisional assessment basis. Where the goods are cleared under the self removal procedure basis on approved classification list and approved price list, the clearances are on self assessment and unless such self assessment is varied or altered, the question of refunding the duty paid on self assessment does not arise at all. In the present case, there is nothing on record to show that the clearances were effected on provisional basis. No fault can be found with the order of the CESTAT, which is impugned in this appeal. Accordingly, the questions are answered in favour of the Revenue and against the assessee. Issues involved:1. Interpretation of Section 11-B of the Central Excise Act regarding the period of limitation for claiming refund of excess duty paid based on provisional rates.2. Determining if the assessments in the appellant's case were provisional and whether the claims were time-barred.3. Analysis of previous court decisions related to the facts of the case.4. Evaluation of errors in judgment and reliance on previous cases.5. Examination of compliance with principles of natural justice in the Order-in-Appeal.6. Review of the rejection of the refund claim based on downward revision of prices.Analysis:1. The appellant cleared cylinders under self-removal procedure with downward price revisions, leading to a refund claim for excess duty paid. The initial refund claim rejection was based on being time-barred, but the Commissioner later allowed the refund. The CESTAT, on further appeal by the Revenue, overturned the Commissioner's decision, leading to the current appeal by the assessee.2. The appellant argued that the clearances were subject to price revisions post-clearance, entitling them to a refund under the Central Excise Act. However, the court found no merit in this argument, stating that without provisional assessment orders, clearances cannot be considered provisional. The self-assessment basis for clearance does not automatically warrant a refund unless the self-assessment is altered.3. The court distinguished the present case from previous judgments, emphasizing the absence of clearances on a provisional basis. The reliance on the Rajasthan High Court's decision was also dismissed, asserting that self-assessment could be challenged through an appeal process.4. The judgment highlighted the importance of following proper assessment procedures and the limited scope for refund claims based on self-assessment. Previous court decisions were analyzed to establish the lack of provisional clearances in the present case, leading to the dismissal of the appellant's arguments.5. The court upheld the CESTAT's decision, finding no fault in rejecting the refund claim. The questions were answered in favor of the Revenue, emphasizing the need for adherence to assessment procedures and the challenge process for self-assessment.6. Ultimately, the court discharged the rule with no order as to costs, concluding the analysis of the issues raised in the appeal related to the refund claim and the interpretation of relevant provisions of the Central Excise Act.