TaxTMI 
TaxTMI 
2013 (9) TMI 652
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.... to 25/06/1999 when Rule 9B of the Central Excise Rule 1944 was amended. It was observed by the two member WZB Ahmedabad Bench that there are conflicting views on the issue and accordingly the matter was referred to the larger bench for consideration. 2. Shri V. S. Nankani , Advocate appearing on behalf of M/s. Panasonic Battery India Co. Ltd. (Formerly known as Matsushita Lakhanpal Battery India Ltd.) submitted that the disputed period in these appeals is 01/01/1987 to 31/05/1998. During the above period there was a dispute regarding determination of assessable value under Sec. 4 of the Central Excise Act, 1944, as in force prior to its amendment in 2000, on account of deductions claimed by the appellant's company. During the pendency....
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....SC)] (ii) CC.EX. vs . Allied Photographic India Ltd. [2004 (166) ELT 3 (SC)] (iii) CC vs. Hindustan Zinc Ltd .[ 2009 (235) ELT 629 (Tri.-LB)] (iv) CC vs. Hindalco Industries Ltd. [2008 (231) ELT 36 ( Guj .)] 4. Shri K. SivaKumar (AR) appearing on behalf of the Revenue argued that amendment carried out in Rule-9B of the Central Excise Rules, 1944 on 25/06/1999 is only a clarificatory amendment and will be applicable to the refund claims arisen out of finalization of provisional assessment after 25/02/1999 even for the period prior to 25/06/1999. He relied upon the following judgments: (i) CCE, Mumbai-III vs. Standard Drum & Barrel Mfg. Co. [2006 (199) ELT 590 ( Bom .)] (i....
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....tion 21 of the Taxation Laws (Amendment) Act, 2006, inter-alia, Sub-section (5) to section-18 was introduced with effect from 13/07/2006 and the same is reproduced below: "(5) The amount of duty refundable under sub-section (2) and the interest under sub-section (4), if any, shall, instead of being credited to the Fund, be paid to the importer or the exporter, as the case may be, if such amount is relatable to - (a) the duty and interest, if any, paid on such duty paid by the importer, or the exporter, as the case may be, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and int....
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.... it is not possible to agree with the contention of revenue that such amendment has to be understood as clarificatory in nature. This is more so, when one reads the amendments made in 1998 and the amendment made in Rule 9B of the Central Excise Rules in 1999 considering the pronouncement of the Apex Court as to the distinction between making of a refund and claiming of a refund; the amendment cannot be considered to be retrospective in nature; and cannot be made applicable to pending proceedings. 19. This can be considered from a slightly different angle. While introducing the Taxation Laws (Amendment) Bill, 2005 (Bill No. 74 of 2005) the Notes on Clauses in relation to Section 18 of the Act indicate that sub-sections (3), (4)....
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.... duty cannot be of any assistance to the revenue. Similarly the definition of the term assessment under Section 2(2) of the Act also cannot help the revenue in light of the specific provisions of Section 18 of the Act which override all other provisions of the Act. The contention that the Court should not permit a person to derive unjust benefit also does not merit acceptance. The Court can only read the provisions and the statute as they stand, and if necessary, interpret the same but the Court cannot legislate. This is a salutary principle of interpretation. Furthermore, as noticed hereinbefore, the Apex Court has in no uncertain terms drawn the distinction between making of refund and claiming of refund. The High Court cannot equate the ....
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....hat the amendment carried out in Sec. 18 (5) on 13/07/2006 cannot be held to be clarificatory and retrospective in nature. In para-21 of the judgment in the case of Hindalco Industries Ltd. (supra) it has been held that department is bound by law to make the refund without any claim being required to be filed for the period up to 12/07/2006. Entitlement to refund and finalization of provisional assessment under sec 9B of the Central Excise Rules 1944 is independent from the provisional of refund under sec. 11 B of the Central Excise Act, 1944. Even under the amendment made by Notification No.45/99-CE (NT) dt . 25.06.1999 only the procedure established under sub-sec. (2) of sec. 11 B of Central Excise Act, 1944 has been made applicable to th....