1997 (6) TMI 242 - AT - Central Excise

Summary

Issues:
1. Refund claim for double payment of Central Excise duty.
2. Rejection of refund claim on the ground of time bar.
3. Interpretation of relevant date for filing refund claim in case of provisional assessments.

Analysis:
1. The appellant filed a refund claim for double payment of Central Excise duty on both 'issued' and 'not issued' invoices. They had paid duty twice for the same consignment due to cancellation of earlier invoices and issuance of new ones. The Assistant Commissioner agreed with the appellant's claim and sanctioned a partial refund. However, the rest of the refund claim was rejected as time-barred based on the amended Section 11B, which specifies the relevant date for filing a refund claim as the date of payment of duty. The Commissioner (Appeals) upheld the rejection, leading to the appeal before the Tribunal.

2. The appellant argued that since the assessments were provisional and were finalized in April 1994, the relevant date for filing the refund claim should be considered as the date of final adjustment after the provisional assessments. The Tribunal acknowledged the double payment of duty and the provisional nature of assessments during the relevant period. It was noted that Section 11B, as amended in 1991, did not specify a relevant date for provisional assessments. However, Rule 9B of the Central Excise Rules, 1944 addressed the issue. Rule 9B(5) outlined the process for refund claims in cases of provisional assessments, stating that a refund claim filed before final assessment would be premature. The Tribunal emphasized that the relevant date for filing a refund claim should be when the final assessment is made, determining the actual duty liability. Therefore, in this case, as the assessments were finalized in April 1994, the refund claim, filed earlier, should be considered within the time limit.

3. The Tribunal highlighted that requiring assessees to file refund claims within six months of payment of duty during provisional assessments would create practical difficulties. It would force the department to decide on refund claims before final assessments, potentially leading to interest payments. Therefore, it was concluded that the relevant date for filing a refund claim in cases of provisional assessments should be the date of final adjustment after the assessments are completed. Consequently, the Tribunal allowed the appellant's appeal and granted them the consequential relief.