2007 (2) TMI 109 - AT - Central Excise

Refund - Appellant demand for refund claim on the ground that they made excess payment of duty on the consignment sale - Held that appellant claim not sustained on the ground that they didn t file any appeal against the finalization of provisional assessment

Summary

Issues:
1. Refund claim for excess duty paid on consignments.
2. Applicability of Supreme Court's decision in a similar case.
3. Finalization of assessment under Rule 173(I) of Central Excise Rules, 1944.
4. Challenge against the final assessment order.
5. Duty payment based on ex-factory price.
6. Appeal against finalization of provisional assessment.

Analysis:

1. The appellants filed a refund claim for excess duty paid on consignments, which were not payable under Section 4(1)(A) of the Central Excise Act, 1944. The Assistant Commissioner of Central Excise sanctioned the refund claim, which was later challenged by the Revenue.

2. The Commissioner (Appeals) cited the Supreme Court's decision in a similar case to support the argument that the refund was wrongly sanctioned and the amount was recoverable under Section 11A of the Central Excise Act, 1944. Consequently, the appeal of the Revenue was allowed.

3. The appellant's representative argued that the refund claim arose from the finalization of assessment under Rule 173(I) of the Central Excise Rules, 1944, and there was no need to appeal against the final assessment order as the case of the Supreme Court decision was not applicable.

4. The Departmental Representative reiterated the Commissioner (Appeals)'s findings, emphasizing that the finalization of assessment was subject to the production of sale details of depots, indicating that the payment of duty on ex-factory price was not accepted during the assessment.

5. It was highlighted that the appellant did not challenge the direction of the assessment order by filing an appeal before the appellate authority, leading to the applicability of the Supreme Court's decision in the case at hand.

6. The Tribunal, after considering both sides, upheld the decision of the Commissioner (Appeals) and rejected the appeal. It was concluded that the refund claim was not accepted during the finalization of provisional assessment, and since no appeal was filed against it, the Supreme Court's decision was deemed applicable.

In conclusion, the Tribunal rejected the appeal based on the grounds that the refund claim was not accepted during the finalization of assessment, and the Supreme Court's decision supported the decision of the Commissioner (Appeals).