2013 (3) TMI 25 - AT - Central Excise

Appellant's Late Refund Claim Rejected | Importance of Procedural Compliance

The Tribunal held that the appellant's refund claim was time-barred under Section 11B of the Central Excise Act, 1944. The claim, based on the ... Refund claim on excess duty paid rejected as time bar - reduction of rates of sets of high tensile centre buffer coupler for B. G. wagon and high capacity draft gear, falling under Chapter Sub-heading 8607.00 of CETA, 1985 to Indian Railways - Held that:- On a plain reading of the meaning of relevant date prescribed under Section 11B of the Central Excise Act, 1944, it is clear that where excise duty was paid provisionally under the Act or the rules, the date of adjustment of duty after final assessment, should be the date for calculation of the period of one year for claiming refund of the excise duty paid. In any other case, the date of payment of duty, is prescribed to be relevant date for claiming the refund. In the present case, the duty was paid in July, 2005 on the basis of a provisional price, but not on the basis of provisional assessment under the Central Excise Act & Rules and the circumstances and procedure for resorting to provisional assessment has been prescribed under the Central Excise Rules which had not been followed by the Appellant in the present case and hence, finalization of price on 13.9.06, cannot be construed as finalization of provisional assessment. As decided in Maharashtra Cylinders Pvt. Ltd., (2010 (8) TMI 235 - BOMBAY HIGH COURT) that even though there is a clause in the agreement stipulating downward revision of prices, the same cannot be taken to be an assessment to duty on provisional basis - in favour of revenue. Issues:1. Time limit for filing a refund claim under Section 11B of the Central Excise Act, 1944 based on the finalization of price.2. Interpretation of the relevant date for claiming a refund of excess duty paid.Analysis:1. The appellant supplied goods to Indian Railways at a provisional price, which was later finalized at a lower rate. The appellant filed a refund claim within one year of the finalization of price, but it was rejected as time-barred. The issue was whether the refund claim filed after finalizing the price was within the time limit prescribed under Section 11B of the Central Excise Act, 1944. The appellant argued that the relevant date for claiming the refund should be from the finalization of price, not the payment of duty. The Department contended that the refund claim was time-barred as duty was paid in July 2005, but the claim was made in 2007. The Tribunal analyzed the relevant provisions and case laws to determine the correct interpretation of the relevant date for claiming a refund.2. The Tribunal examined the definition of the relevant date under Section 11B of the Central Excise Act, 1944. It was noted that the relevant date for claiming a refund is the date of payment of duty in cases where duty is not paid provisionally. In this case, the duty was paid in July 2005 based on a provisional price, but not under provisional assessment. The Tribunal agreed with the Department that finalizing the price in 2006 did not equate to finalizing a provisional assessment. Referring to relevant case laws, including a decision by the Hon'ble Bombay High Court and a Larger Bench of the Tribunal, it was established that clauses in agreements regarding price variations do not automatically qualify assessments as provisional. The Tribunal concluded that the order of the Commissioner (Appeals) was reasoned and upheld, dismissing the appeal as lacking merit based on the correct interpretation of the law and relevant precedents.In conclusion, the Tribunal determined that the refund claim filed by the appellant was time-barred as it was based on the finalization of price, not the payment of duty, and did not meet the requirements under Section 11B of the Central Excise Act, 1944. The judgment emphasized the importance of following prescribed procedures for provisional assessments and clarified the interpretation of the relevant date for claiming refunds in excise duty cases.