TaxTMI 
TaxTMI 
2018 (4) TMI 108
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....specially considering that the amendment to Section 11B of Central Excise Act, 1944 was brought with effect from 01.08.98 whereby refund consequent to finalization after 01.08.98 would be covered by the provisions of Section 11B ibid, as held by the Hon'ble High Court, Mumbai in the case of M/s.Standard Drum & Barrels Mfg. Co.,? (ii) Whether the 1st respondent is entitled to canvass the correctness or otherwise of the order passed in order-in-original 19/2001 dated 9.5.2001 which only rejected the claim of refund by merely following the earlier finding made in provisional assessment order-in-original No.77/2000 dated 31.10.2000 especially when such order or the finding therein has not been challenged by the 1st respondent and the same ave become final, conclusive and binding on the 1st respondent.? 3. Short facts leading to the filing of the appeal are as follows: M/s.Apex Laboratories, Chennai, the 1st Respondent herein is a manufacturer of Pharmaceutical products falling under Chapter 3003.10 of Central Excise Tariff Act, 1985. The 1st respondent had filed refund claim of Rs. 5,47,054/- on 01.03.2001, consequent to the finalization of provisional assessment, vide order, i....
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....sequential to finalization of provisional assessment for any period prior to 25.06.99. 8. Learned counsel for the appellant further submitted that the Appellate Tribunal ought to have noted that, the provisional assessment for the year 1998-99 was finalized vide Order-in-Original No.77/2000 dated 30.10.2000 and that the Adjudicating Authority vide Order-in-Original cited supra held, at the time of finalization of provisional assessment that it was proved beyond doubt that they have passed on the duty burden to their customers and that since the duty element was passed on to their customers, the 1st respondent/assessee has no right to claim the excess duty of Rs. 5,47,054.03 and accordingly, transferred the said amount to the Consumer Welfare Fund in terms of Section 12C of Central Excise Act, 1944. Subsequently, the 1st respondent filed a refund claim of Rs. 5,47,054/- on 01.03.2001 consequent upon the finalization of provisional assessment vide order in original No.77/2000 dated 30.10.2000. This refund claim was rejected vide order in Original No.19/2001 dated 09.05.2001 upholding the findings given in Order in original No.77/2000 dated 30.10.2000 cited supra. Therefore, learned ....
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....d to Rule 9B on June 25, 1999 is merely clarificatory in nature, as it merely reiterates the existing statutory provisions contained in Section 11B of the Excise Act from August, 1, 1998. Proceeding further, the High Court held that the assessee has filed the refund application on November, 1, 1999 and that since amendment to Rule 9B(5) had come into force from June 25, 1999, the said refund application made on November 1, 1999 had to be disposed of as per the amended Rule 9B(5) by applying the principles of unjust enrichment contained in Section 11B of the Excise Act and that the contention, that the refund claimed in the application dated November, 1, 1999 pertains to the refund accrued to the assessee prior to June 25, 1999 and therefore the amended Rule 9B(5) has no application cannot be accepted for the simple reason that in view of the amendment to Section 11B with effect from August, 1, 1998, all refunds arising on finalization of the provisional assessments made under the Excise Rules are governed by the procedure prescribed under Section 11B of the Excise Act and the amendment to Rule 9B(5) on June 25, 1999 merely clarifies the legal position existing from August, 1, 1998.....
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....case of M/s.TVS Suzuki, refund on finalization of the provisional assessment had accrued to the assessee, therein, prior to the amendment of Section 11B on August 1, 1998. Similarly, with regard to M/s.Allied Photographics also, it was held that the issue before the Apex Court was relating to the refunds arising on finalization of the provisional assessment prior to August 1, 1998. Accordingly, it proceeded to hold that the refund in the case of M/s.Standard Drum & Barrels Mfg. Co., accrued after August 1, 1998 and accordingly distinguished the facts and circumstances involved in the case of M/s.TVS Suzuki and M/s.Allied Photographics. This vital aspect has been omitted to be considered by the Appellate Tribunal. 14. Learned counsel for the appellant submitted that it is clear from the above position that the case laws cited by the appellate tribunal, which relied on the decisions rendered in the case of M/s.TVS Suzuki and M/s.Allied Phographics, do not hold good, in view of the clear distinction brought out by High Court, Mumbai. With regard to the other case laws, which cited the amendment to Rule 9B(5) of Central Excise Rules, 1944, the decision rendered by the High Court, Mumb....
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....006 (199) ELT 590 (Bom.)], we are not inclined to accept the same, for the reason that when a similar issue came up for consideration, a Hon'ble Division Bench of this Court in Commissioner of Central Excise, Chennai-I, Vs. Dollar Company Private Limited, reported in 2015 (327) ELT 13 (Mad.)., after analysing Section 11 B of the Central Excise Act, which relates to claim for refund of duty, other provisions and following the decision of the Hon'ble Supreme Court in Commissioner of Central Excise, Chennai Vs. TVS Suzuki Limited, reported in 2003 (156) ELT 161 (SC), held as follows: "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 Exp....
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.... 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 retrospective in operation. In the said decision, the Supreme Court held as under :- "In Mafatlal Industries Ltd (supra) a Bench of nine learned Judges of ....
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....ourt 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 time to process the application for refund, the right of the asseessee does not get defeated by the subsequent amendment made in sub-rule (5) of Rule 9B. The Commissioner of Central Excise and the CEGAT were, therefore, justified in holding that the claim for refund made by the resp....