2006 (12) TMI 428

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e said provision was inapplicable where provisional assessment was finalized under Rule 9B. 2. The appellant was engaged in the manufacture of electronic goods (computers and parts thereof) and on 11-3-2003, it filed a refund claim of Rs. 5,84,606/-. Earlier, it had filed eight refund claims between 30-9-1992 and 29-6-1994 for an amount of Rs. 85,84,474/- seeking deductions in respect of post manufacturing expenses under various heads which is said to be including the aforesaid amount of Rs. 5,85,606/-. The Assistant Commissioner by order dated 2-6-1996 rejected those claims for deductions and found the assessee liable to pay a sum of Rs. 1,44,417/- while finalizing the provisional assessment. In paragraph 20 of that order, it was held that : "...........on finalization of party's assessment, it is found that the party has paid C.E. duty amounting to Rs. 1,44,417/- short for the years 92-93 and 93-94 for which period the party had filed the refunds claim for their safety/precautionary measures". In the appeal, preferred against that order by the assessee, the Commissioner (Appeals) on 22-5-2001, set aside a part of the order pertaining to the rejection of the claim for dedu....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ntified at Rs. 5,84,606/-. 3.1 The learned Counsel for the appellant placed reliance on the following decisions in support of his submissions :- (a)     The decision of Hon'ble the Supreme Court in Mafatlal Industries Ltd. v. Union of India, reported in 1997 (89) E.L.T. 247, was cited to point out from paragraph 95 of the judgment [paragraph 104 of the report of the said case appearing in 1997 (5) SCC 536] that, the Supreme Court has in no uncertain terms held that : "any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be". These observations were made while considering the provisions of Rule 9B, which provide for provisional assessment in situations specified in clauses (a), (b) and (c) of sub-rule (1). (b)     The decision of Hon'ble the Supreme Court in Commissioner of Central Excise, Calcutta v. Suntrack Electronics (P) Ltd., [TVS Suzuki Ltd.] reported in 2003 (156) E.L.T. 161 (S.C.), was cited to point out that the Supreme Court following the decision of the nine Member Bench in Mafatlal Industries Ltd. and after noticing ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....;   The decision of the Tribunal in Star Paper Mills Limited v. Commissioner of Central Excise, Meerut, reported in 2000 (122) E.L.T. 114 (Tribunal), was cited to point out that a division bench of this Tribunal had, following the ratio of the decision in Mafatlal Industries Ltd., held in paragraph 3 of the order that refund in that case was a consequence of finalization of the provisional assessment, and allowed the appeal. It is stated that a Departmental appeal preferred against this order was dismissed by Hon'ble the Supreme Court, reported in 2003 (157) E.L.T. A143. The Supreme Court held that the order of the Tribunal was supported by judgment of the Supreme Court in Sinkhai Synthetics & Chemicals Pvt. Ltd. (supra). (f)      The decision of the Tribunal in Oriental Exports v. Commissioner, reported in 2001(127) E.L.T. 578, was cited for the proposition that the bar of unjust enrichment was not applicable to refund and recoveries consequent to finalization of provisional assessment. In the process, the Tribunal followed the ratio of the decision of the Supreme Court in Mafatlal Industries Ltd. (supra). It was pointed out that while dismiss....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... is required to make an application for refund of such duty to the proper officer within the time prescribed. Under sub-section (2) of Section 11B, the concerned officer dealing with such application may make an order on such application, if he is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable. That order ordinarily would include a direction to credit the amount to the "Fund" as defined in Section 2(ee) of the Act, unless the matter is governed by the proviso to sub-section (2) of Section 11B, in which case instead of the amount being credited to the fund it is required to be paid to the applicant. Sub-section (3) of Section 11B has an overriding effect in the following terms :- "11B(3) - Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2)."[emphasis added] 6. It would appear from the wordings of sub-section (3) of Section 11B which are that, unambiguous that, no refund s....