2014 (6) TMI 450

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....there was an excess payment of duty to the extent of Rs. 50,826/-. Appellant filed a refund claim which was allowed by the original adjudicating authority. On an appeal filed by the Revenue, in the impugned order, the claim has been rejected on the ground of limitation finding that the refund claim was filed beyond the period of one year prescribed under Section 11B of the Central Excise Act, 1944. 2. The learned advocate submitted that the Commissioner (Appeals) erred in taking a view that the refund claim is barred by limitation. 3. He submits that the assessment has to be deemed to be provisional and the date for the purpose of Section 11B has to be taken as the date on which TNEB intimated the reduced price to the assess....

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....nsidered even though the decision, of the Hon'ble High Court of Karnataka in Keltech (supra) was rendered in 2010. In the case of Mauria Udyog Ltd., Hon'ble High Court of P&H took the view that unless the clearances of the goods were made on provisional basis, reduction of price at later date could not be made foundation for seeking refund. 4. Further the learned counsel also relied upon the decision of the Hon'ble High Court of Bombay to submit that assessee would be eligible for refund. This decision was rendered in the case of CCE, Nagpur v. Oriental Explosives (P) Ltd. [2008 (222) E.L.T. 205 (Bom.)]. In this case, the Hon'ble High Court considered the issue and clearly distinguished the facts of the case in Oriental Explosives f....

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....ion, Bangalore in respect of the very same assessee discontinuing the provisional assessment resorted to as per order passed in 2001. In this case, leave alone deemed provisional assessment, we have an order specifically taking a decision that there shall be no provisional assessment in the case of the assessee. The learned counsel drawing attention to para 6 wherein, the submissions made by the appellant that they would not insist on provisional assessment and they would claim refund in case of excess payment and make payment to the Government if there is short payment and therefore they have no objection to the provisional assessement discontinuation have been recorded. This does not help the appellant at all. If they wanted provisional a....