2000 (5) TMI 113 - AT - Central Excise

Refund claims date from final duty adjustment post assessment, not provisional assessment for eligibility.

The Tribunal upheld the Commissioner (Appeals) order, ruling that the relevant date for refund claims under Section 11B should be from the date of duty ... Refund - Limitation - Relevant date Issues:1. Interpretation of relevant date for refund claim under Section 11B.2. Applicability of Rule 9B in refund cases.3. Time limit for refund claims in provisional assessment cases.Analysis:Issue 1: Interpretation of relevant date for refund claim under Section 11BThe Commissioner of Central Excise, Bhubaneswar, filed an appeal against the Commissioner (Appeals) order regarding the duty paid by the assessee at the time of goods clearance based on provisional prices. The Commissioner argued that the relevant date for refund claim under Section 11B should be within six months from the date of payment, as there is no provision for adjustment of duty after final assessment under Rule 173-I. However, the Commissioner (Appeals) held that the relevant date for Section 11B would be from the date of duty adjustment after final assessment under Rule 173-I. The Tribunal agreed with the Commissioner (Appeals) and emphasized that the refund entitlement arises only after the adjustment of duty provisionally assessed against the duty finally assessed.Issue 2: Applicability of Rule 9B in refund casesThe Tribunal considered the argument presented by the respondents' advocate, who relied on various cases and Rule 9B(5) to support the contention that refunds based on Rule 9B are independent of Section 11B. The advocate highlighted that Rule 9B entitles the assessee to a refund, and such refunds are not covered by Section 11B. The Tribunal acknowledged the advocate's arguments and emphasized that the specific provisions of Rule 9B override the general provisions of Section 11B in certain refund cases.Issue 3: Time limit for refund claims in provisional assessment casesAfter analyzing the provisions of Rule 173F and the amendments brought in with effect from 20-11-1996, the Tribunal clarified that when assessments are provisional under Rule 173B, 173C, or deemed to be so under 173CC, the time limit prescribed under Section 11B would arise only from the date of payment of duty, i.e., the finalization of assessment. The Tribunal highlighted that there is no time limit for completion of assessment fixed under Rule 173-I. Therefore, it concluded that the Commissioner (Appeals) was correct in remanding the matter back to the Assistant Commissioner to ascertain the dates of finalization of assessments and re-determine the eligibility of any refund dues.In conclusion, the Tribunal dismissed the appeal and confirmed the Commissioner (Appeals) order, emphasizing the importance of final assessment in determining refund eligibility in provisional assessment cases.