2009 (12) TMI 367 - HC - Central Excise

Refund-Limitation- In this case claim of payment of excise duty provisionally, though could have been claimed by appellant in writing was never claimed by him, nor any direction issued to appellant by proper officer authorizing the payment of excise duty provisionally. None of the documents are material for determining the issue whether excise duty deposited by appellant was provisional or not. Held that- Assessee failed to bring out his case within statutory provisions so as to lead to conclusion that the deposit of excise duty at the hands of appellant was provisional. Benefit of limitation cannot run from date of final assessments. Tribunal s order holding refund as barred by limitation, upheld.

Issues Involved:
1. Whether the appellant had deposited excise duty provisionally.
2. Whether the refund claim by the appellant was within the stipulated period under Section 11-B of the Central Excise Act, 1944.

Issue-wise Detailed Analysis:

1. Whether the appellant had deposited excise duty provisionally:

The court examined whether the excise duty was paid provisionally by interpreting Rule 9B of the Central Excise Rules, 1944. Rule 9B outlines two scenarios for provisional assessment:

- First Scenario: The assessee requests the proper officer in writing for provisional assessment, stating reasons, and the proper officer authorizes it. The court found no evidence that the appellant made such a written request or that the proper officer authorized provisional payment. The court concluded, "there is no material on the record of the instant appeal so as to demonstrate that the appellant made any such request in writing, depicting the reasons for claiming payment of excise duty provisionally."

- Second Scenario: The proper officer, upon finding the self-assessment improper, directs the assessee for provisional assessment. The court found no evidence of such a direction from the proper officer. It stated, "There is no material on the record of this case so as to suggest, that the proper officer ever issued any such direction to the appellant, requiring him to resort to provisional assessment."

The court dismissed the appellant's reliance on certain documents suggesting provisional payment, emphasizing that the statutory provisions under Rule 9B must be met, which was not the case here.

2. Whether the refund claim by the appellant was within the stipulated period under Section 11-B of the Central Excise Act, 1944:

Section 11-B(1) of the Central Excise Act, 1944, stipulates that a refund claim must be made within one year from the relevant date. The relevant date, in cases of provisional payment, is defined under sub-clause (eb) of clause (B) of the explanation to Section 11-B as "the date of adjustment of duty after the final assessment thereof."

The court noted, "if the period of limitation is calculated from the date of payment of excise duty, the claim of refund at the hands of appellant would be time-barred." Since the court determined that the excise duty was not paid provisionally, the relevant date for calculating the limitation period was the date of payment, not the date of final assessment. Consequently, the refund claim made by the appellant was beyond the one-year period from the date of payment, rendering it time-barred.

The court concluded, "the Tribunal was fully justified in concluding that the claim of the appellant for refund of excise duty was barred by time."

Conclusion:

The court dismissed the appeal, affirming the Tribunal's decision that the refund claim was time-barred as the excise duty was not paid provisionally, and the claim was made beyond the stipulated period under Section 11-B of the Central Excise Act, 1944. The court stated, "the instant appeal, being devoid of merit, is liable to be dismissed. The same is accordingly dismissed."

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