2024 (5) TMI 191 - AT - Central Excise

Refund claim - Can refund be claimed without opting of provisional assessment? - Reduction in price subsequently resulting in payment of duty in excess - time limitation - Section 11B of the CEA, 1944 - HELD THAT - The word may is used interchangeably with shall and does not necessarily mean that the word may used cannot be read as shall . If the Learned Advocate‟s contention is taken as correct, that would mean that the refund claim can be made even after many years since no specific mention has been made that the refund claim should be made within one year. This would make the time specified under Section 11B (1) otiose. On going through the orders of the lower authorities, it is found that they have passed a detailed and considered Order wherein they have rejected the refund claim solely on the ground of time bar. There are no reason to interfere with the same. Accordingly, the present Appeal is dismissed.

Summary

Issues involved:
The issue of whether refund can be claimed without opting for provisional assessment and the issue of time bar under Section 11B of the Central Excise Act, 1944.

Issue 1: Refund without opting for provisional assessment
The Appeal was taken up for disposal after it was informed that the issue of refund without opting for provisional assessment had been referred to the Larger Bench. However, the refund claim in this case was rejected solely due to delayed filing, not for not opting for provisional assessment. The Appellant had made supplies to Indian Railways and claimed refund due to de-escalation in prices. The Department rejected the claim based on time bar under Section 11B of the CEA, 1944. The Appellant argued that the Railways paid less Excise Duty due to price reduction, justifying their delayed refund claim. The Tribunal dismissed the Appeal, stating that the refund claim was rightly rejected based on time bar, not due to the provisional assessment issue.

Issue 2: Time bar under Section 11B of the CEA, 1944
The Appellant paid duty in April 2010 and filed the refund claim in July 2011, exceeding the one-year limit under Section 11B. The Department rejected the claim solely on the grounds of time bar. The Tribunal analyzed Section 11B, which requires refund claims to be made within one year from the relevant date. The Appellant argued that the word "may" in the section implies discretion in filing the claim, but the Tribunal disagreed, stating that "may" does not negate the one-year time limit. The Tribunal upheld the lower authorities' decision to dismiss the claim based on time bar, emphasizing that the word "may" does not allow indefinite delay in filing refund claims. The Appeal was consequently dismissed, and cross objections were also disposed of.