2008 (12) TMI 545 - AT - Central Excise

Summary

Issues:
1. Applicability of time limit under Section 11B for refund claimed due to finalization of provisional assessment under Rule 9B of Central Excise Rules, 1944.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Ahmedabad involved the issue of whether the time limit provided under Section 11B is applicable when a refund is claimed as a result of finalization of provisional assessment under Rule 9B of Central Excise Rules, 1944. The Commissioner (Appeals) had allowed the respondent's appeal against the rejection of a refund claim for Rs. 21,89,834, relying on various judgments including those of the Hon'ble Supreme Court and Tribunal. The judgments cited established that the refund under Rule 9B as a result of finalization is not governed by the provision of Section 11B of the Central Excise Act and the proviso related to unjust enrichment, emphasizing that Rule 9B does not have a retrospective effect.

The Tribunal heard both sides and considered the arguments presented. The Departmental Representative (DR) contended that the refund claim was filed after the amendment of sub-rule (5) of Rule 9B, and therefore, the decision in the TVS Suzuki Ltd. case was not applicable. On the other hand, the respondents relied on the TVS Suzuki Ltd. case and the Tribunal's decision in Sriram Pistons & Rings Ltd. The Tribunal noted that the Assistant Commissioner had concluded that the appellants were eligible for the refund during the entire period covered in the case, as they were in appeal regarding the valuation of goods and deductions claimed. The key issue was whether the provisions of Section 11B were applicable. The Tribunal distinguished the present case from the TVS Suzuki Ltd. case based on the timing of the refund claim and the finalization of assessment.

Examining sub-rule (5) of Rule 9B of the Central Excise Rules, the Tribunal highlighted that the rule envisages an order of refund to follow the finalization of provisional assessment without the assessee needing to make a claim for refund. Therefore, the officer finalizing the assessment should have sanctioned the refund suo motu after passing the finalization order. Consequently, the date of filing the claim was deemed irrelevant, and the refund should have been made automatically. Consequently, the Tribunal upheld the order passed by the Commissioner (Appeals) and rejected the appeal filed by the Revenue.

In conclusion, the judgment clarified the non-applicability of the time limit under Section 11B for refunds resulting from the finalization of provisional assessments under Rule 9B, emphasizing the obligation of the assessing officer to sanction refunds without necessitating a formal claim from the assessee.