TaxTMI 
TaxTMI 
TaxTMI 
2009 (3) TMI 149
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....the assessee's Dehradun unit and watch parts sourced also through imports were sold from outlets situated in Bangalore etc. Assessment of these goods was finalized periodically, after the close of the financial year when the items of expenditure of the outlets such as discount, octroi, cost of transportation allowed on sale of these goods by these outlets were available. Vide Order-in-Original No. 109/96 dated 28-6-1996, the original authority identified the admissible deductions from ECP and determined their respective percentages of the ECP adopted for assessment at the time of their clearances from the factory. The assessee staked claim for more items of abatement and filed appeal before the Commissioner (Appeals). The Commissioner (Appe....
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.... there was no need for the assessee claiming refund of the excess duty paid ascertained on finalization of provisional assessment. The Tribunal observed as follows: "We are constrained to observe that the direction given therein to file refund claim is totally unwarranted in view of the provisions contained under Rule 9B of the Central Excise Rules, 1944. The above rule relates to the provisional assessment to duty. Sub-rule 5 reads as under:- "When the duty leviable on the goods is assessed finally in accordance with the provisions of these rules, the duty provisionally assessed shall be adjusted against the duty finally assessed and If the duty, provisionally assessed falls short of, or is in excess of the duty finally assessed, the ass....
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....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. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed. - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) re-agitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, It would o....
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....oper officer should obtain permission for continued provisional assessment from the jurisdictional Chief Commissioner. In view of the ratio of the decision of the Tribunal in Shriram Pistons & Rings Ltd. v. Commissioner of Central Excise, Ghaziabad (supra) and the Apex Court's judgment in Mafatlal Industries case we hold that refund of the excess duty paid by the assessee while clearing watches and parts during 1994-95 is not governed by Section 11B at the time when the provisional assessment was finalized. Therefore, we hold that the finding that the claim for refund was barred by limitation is not sustainable. 3. As regards unjust enrichment, the apex Court held in Mafatlal Industries case that Section 11B did not apply to grant of refun....