2018 (10) TMI 2031 - AT - Central Excise

Can an assessee claim a refund for excess duty u/s 11B without opting for provisional assessment? Larger Bench to decide.

SUPER AUTO (I) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, FARIDABAD

The Tribunal referred the matter to a Larger Bench to resolve whether an assessee, who did not opt for provisional assessment, can claim a refund of ... Refund of excess duty paid - assessee did not opt for provisional assessment - Section 11B of Central Excise Act, 1944 - difference of opinion - HELD THAT:- Considering the fact that as there were divergent views of this Tribunal as well as High Court, in that circumstance, the matter is required to be referred to the Larger Bench of this Tribunal to decide the following issue:- “Whether in case an assessee did not opt for provisional assessment, can an assessee claim refund of excess duty paid by them in terms of Section 11B of Central Excise Act, 1944 or not.” The Registrar is directed to place the matter before the Hon’ble President for constitution of the Larger Bench to resolve this issue. Issues: Appeal against rejection of refund claim due to non-opting of provisional assessment for duty.Analysis:1. The appellant, engaged in manufacturing motor vehicle parts, supplied goods to a buyer presuming a higher price, resulting in higher duty payment. When the buyer did not pay the higher price as agreed, the appellant filed a refund claim, which was rejected for not opting for provisional assessment of duty during self-assessment.2. The appellant's counsel cited precedents like Birla Ericsson Opticals Limited and Meccanica Plast Pvt. Ltd. to support the claim for a refund despite not opting for provisional assessment. However, the respondent's counsel referred to the case of Keihin Fie Pvt. Ltd. and the decision of Punjab & Haryana High Court in Mauria Udyog Ltd. to argue against the refund claim without provisional assessment.3. Given the conflicting views of the Tribunal and High Court on the issue, the matter was referred to the Larger Bench to determine whether an assessee not opting for provisional assessment can claim a refund of excess duty paid under Section 11B of the Central Excise Act, 1944.4. The Tribunal directed the Registrar to present the case before the Honorable President for the constitution of the Larger Bench to resolve the crucial issue at hand, emphasizing the need for a definitive decision in light of the divergent interpretations.