2012 (12) TMI 433 - AT - Central Excise

Refund claim on the basis of exemption Notification No. 130/83-C.E. Held that - During the period of dispute for claiming exemption notification, filing of classification list an its approval by the Assistant Commissioner was mandatory requirement under 173B without which exemption could not be claimed - appellant filed classification list in February, 1992 with retrospective effect, this classification list was rejected by the AC and against this order, no appeal has been filed by the appellant and thus AC s order rejecting the appellant s claim for benefit of Notification No. 130/83-C.E., dated 27-4-1983, became final - refund claim on the basis of exemption Notification No. 130/83-C.E. cannot be entertained

Summary

Issues:
Claim for refund based on exemption notification under Notification No. 130/83-C.E., dated 27-4-1983 for the period of October and November 1990.

Analysis:
The appellant, a sugar manufacturer, initially did not claim the benefit of Notification No. 130/83-C.E., dated 27-4-1983, in the classification list filed for the disputed period. Subsequently, they filed a refund claim in February 1991, asserting eligibility for the concessional duty rate under the said notification. However, a later classification list filed in 1992 with retrospective effect, claiming the same exemption, was not approved by the Assistant Commissioner. The appellant did not appeal this decision, making it final. The refund claim was rejected on grounds of unjust enrichment and failure to claim the exemption in the original classification list. The Tribunal remanded the matter for reconsideration in light of a Supreme Court judgment and the principle of unjust enrichment.

In the de novo proceedings, the Commissioner (Appeals) again dismissed the appeal, stating that since the appellant did not challenge the AC's decision on the rejected classification list, they could not claim the refund. The appellant appealed this decision. The appellant argued that their timely refund claim in 1991 should not be denied solely because the later classification list was rejected. The Revenue contended that the mandatory requirement for claiming the exemption during the disputed period was the filing and approval of the classification list, which the appellant failed to do.

The Tribunal held that the key issue was whether the refund claim based on the exemption notification could be entertained, considering the appellant's failure to claim the exemption during the disputed period and the rejection of the subsequent classification list. It was deemed essential to file and have the classification list approved by the Assistant Commissioner during the disputed period to claim the exemption. As the appellant's 1992 classification list was rejected without appeal, the AC's decision became final. Citing the Apex Court's judgment in a similar case, the Tribunal concluded that the refund claim could not be entertained. Consequently, the appeal was dismissed, upholding the decision to reject the refund claim based on Notification No. 130/83-C.E., dated 27-4-1983.