2014 (6) TMI 450 - AT - Central Excise

Denial of refund claim - deemed provisional assessment - period of limitation - Original authority allowed refund claim - Commissioner disallowed refund claim as time barred - Held that - there was an Order-in-Original No. 60/2005, dated 28-10-2005 passed by the Deputy Commissioner of Central Excise, Yeshwantpur Division, Bangalore in respect of the very same assessee discontinuing the provisional assessment resorted to as per order passed in 2001. In this case, leave alone deemed provisional assessment, we have an order specifically taking a decision that there shall be no provisional assessment in the case of the assessee. The learned counsel drawing attention to para 6 wherein, the submissions made by the appellant that they would not insist on provisional assessment and they would claim refund in case of excess payment and make payment to the Government if there is short payment and therefore they have no objection to the provisional assessement discontinuation have been recorded. This does not help the appellant at all. If they wanted provisional assessment, an order to that effect should have been insisted upon by them. The order passed by the Deputy Commissioner was an appealable order and in fact I find that it has become a consent order because of the submissions made by the appellant themselves. Under these circumstances, the assessment in the case of the appellant cannot be considered as provisional or deemed provisional. Therefore, the refund claim filed by the appellant for the purpose of limitation under Section 11B of the Central Excise Act, 1944 has to be considered on the basis of the payment of duty at the time of initial clearance and admittedly refund claim was filed beyond the normal period of limitation of one year. Therefore the assessee has failed to make out a case in their favour. - Decided against assessee.

Summary

Issues:
Refund claim rejection based on limitation under Section 11B of the Central Excise Act, 1944.

Analysis:
1. The appellant, engaged in transformer manufacturing, supplied to Tamil Nadu Electricity Board (TNEB) with a subsequent price reduction resulting in excess duty payment of Rs. 50,826 during March 2007 to September 2007. The refund claim was allowed by the original authority but rejected on appeal by the Revenue citing limitation under Section 11B.

2. The advocate argued that the refund claim is not time-barred as the assessment should be deemed provisional, taking the date of TNEB's price reduction intimation as the relevant date. Citing a Karnataka High Court decision, it was contended that when duty was paid voluntarily, a refund is entitled upon price reduction.

3. The advocate further relied on a Bombay High Court decision distinguishing Mauria Udyog Ltd. case, emphasizing that when clearances are not provisional, a price reduction cannot be the basis for a refund claim. The absence of a provisional assessment order under Rule 9B was highlighted, supporting the Revenue's stance.

4. The Tribunal rejected the appeal, emphasizing that no provisional assessment was in place, as evidenced by an order discontinuing provisional assessment for the appellant. The appellant's consent to the discontinuation further weakened their claim for deemed provisional assessment.

5. Consequently, the Tribunal upheld the rejection of the refund claim, stating that the claim was filed beyond the one-year limitation period under Section 11B. The appellant failed to establish a case in their favor due to the absence of deemed provisional assessment and the untimely filing of the refund claim.

In conclusion, the Tribunal dismissed the appeal, emphasizing the lack of provisional assessment and the untimely filing of the refund claim, thereby upholding the rejection based on limitation under Section 11B of the Central Excise Act, 1944.