2008 (2) TMI 301 - AT - Central Excise

Tariff rate on the goods Carbon Black Feed Stock was lower than the specific duty fixed under notification 26/89 duty paid by assessee as per the notification refund sought for excess payment of duty exact date of finalization of RT-12 return not available so whether refund filed on 5.7.95 is time barred or not since it is clear that classification list was approved on 30-3-95, it can be presumed that finalization would have been done after 30.3.95 hence refund is not time barred

Summary

Issues:
Refund claim rejection on grounds of time bar.

Analysis:
The case involved a Public Sector Unit appealing against the rejection of their refund claim due to being time-barred. The dispute revolved around the period from 17-9-93 to 28-2-94 concerning Carbon Black Feed Stock. The Government had issued a notification specifying an exempted duty rate, which was higher than the tariff rate applicable. The Appellants initially paid duty at the higher rate but later claimed a refund, arguing that their assessment was provisional until the classification list was approved on 30-3-1995. The Appellants contended that their refund claims filed on 5-7-95 and 9-8-95 were valid and not time-barred.

The Appellants relied on the Supreme Court's decision in Samrat International (P) Ltd. v. Collector of Central Excise, where clearances made before the approval of the classification list were deemed provisional. They argued that their case was similar and the refund claims should be considered timely. The Appellants also adjusted their refund amount to reflect the principle of unjust enrichment. They maintained that the payments at the higher rate were made under protest, as noted in the PLA entries.

The Department, represented by the ld. SDR, contended that the Appellants failed to show any order for provisional assessment under Rule 9B. Citing various decisions, including Coastal Gases & Chemicals Pvt. Ltd. v. Asstt. C.C.E., the Department argued that the refund was inadmissible as the Appellants did not establish clearances on a provisional basis as required.

The Tribunal, after considering both sides' submissions, found that the Appellants' case aligned with the Supreme Court's decision in Samrat International. The Tribunal noted that the classification list approval was necessary for finalizing the assessment, and the Appellants had claimed assessment at the lower tariff rate. As per Rule 173I, the excess duty paid was refundable, and the Appellants' refund claims were within the prescribed time limit. Therefore, the Tribunal set aside the impugned order, allowed the appeal, and directed the Original Authority to consider the refund claims without invoking the bar of limitation, subject to unjust enrichment principles and evidence that the excess duty burden was not passed on.

In conclusion, the Tribunal allowed the appeal, emphasizing the importance of the classification list approval and the provisional nature of the assessment until finalized.