TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 346
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....01.08.98 is governed by Section 11B of the Act? ii) Whether the Appellate Tribunal was right in dismissing the Department's appeal on the ground that the amendment was made to Rule 9B (5) of the Central Excise Rules, 1944, with effect from 25.06.99 particularly when a legislative amendment was introduced in Section 11B of the Act from 01.08.1998 onwards by insertion of clause (eb) to Explanation B in Section 11B of the Act? 2. The brief facts of the case are that the respondent/assessee is engaged in the manufacture of pharmaceutical preparation falling under Chapter 30 of the First Schedule to the Central Excise Tariff Act, 1985. The assessee cleared products as Ayurvedic medicine falling under Chapter 3003.30 of the Central Excise Tariff Act and paid excise duty at 8%. The Department, however, classified the product as skin care preparation falling under 3304 of the Central Excise Tariff Act and duty chargeable at 30%. The Assistant Commissioner of Central Excise, by Order-in-Original No.81/97 dated 30.12.97 finalised the issue and held that the goods fall under Chapter 3304 as stated in the show cause notice and demanded differential duty. Th....
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....C)). 7. Heard the learned standing counsel appearing for the appellant/Department and the learned counsel appearing for the respondent/assessee and perused the materials available on record. 8. Even at the outset, it can safely be said that the first substantial question of law is misconceived in the facts of the present case. Section 11B of the Central Excise Act relates to claim for refund of duty and explanation (B) to the said Section speaks about relevant date and clause (eb) deals with the date of adjustment of duty after the final assessment. For better clarity, reference can be made to Explanation (B) and clause (eb) to Section 11B of the Central Excise Act, which are extracted hereunder :- Section 11B. Claim for refund of duty - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in the form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (includi....
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....e. Therefore, it is clear that the date is well within the time stipulated under Section 11B and there can be no dispute raised by the Department on this aspect. Accordingly, the first substantial question of law becomes totally irrelevant and does not require to be answered. 10. The 2nd question of law raised is whether Notification No.45/99-C.E. (N.T.) dated 25.6.1999 would be applicable to the facts of the present case. 11. By virtue of the amendment, the provisions to sub-section (2) to Section 11B becomes applicable to the issues relating to provisional assessment of duty, whereby the provisions of unjust enrichment stood attracted. 12. In the present case, we are concerned with the period prior to amendment dated 25.6.99. On this issue, reliance was placed by the respondent on the decision of the Supreme Court in the case of Commissioner of Central Excise, Chennai - Vs - T.V.S. Suzuki Ltd. (2003 (156) ELT 161 (SC)). In the said case, the plea of refund claim, which was rejected by the Original Authority, was considered in the light of the amendment to Rule 9B (5) and in the said decision, the Supreme Court held that introduction of sub-rule (5) to Rule 9B is not retrospect....
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....estrictions in Section 11A and Section 11B with regard to the procedure for refund would apply to the case of the respondent. The same question came up for consideration of this Court in Sinkhai Synthetics & Chemicals Pvt. Ltd. v. C.C.E., Aurangabad, (2002) 143 E.L.T. 17 SC. This Court took the view that the case would be governed by the rule laid down in Mafatlal Industries Ltd. (supra). This view has been reiterated in a subsequent judgment of this Court in C.A. No. 2533 of 2001. (Commissioner of Central Excise, Meerut v. M/s. Star Paper Mills Limited, [2003] 7 SCC 27) upholding the view of the tribunal that the refund claim of the assessee before the court was justified. Shri Verma fairly concedes that the proviso introduced in sub-rule (5) of Rule 9B cannot be said to be retrospective in operation. He, however, contends that on the date on which the proviso was brought into force, i.e. 25.6.1999, the refund claim was still pending with the departmental authorities and, therefore, it had to be adjudicated in accordance with the law as it became enforceable from 25.6.1999. In our view, this contention cannot be accepted. Merely because the departmental authorities took a long ti....