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1977 (4) TMI 41 - SC - Central ExciseWhether claim for refund was not time barred inasmuch as on the date when they filed the claim for refund their classification list had not been approved? Held that - Any adjustment which is made under sub-rule (5) of Rule 9B dealing with provisional assessments is not governed by Section 11A or Section 11B. The Court has, however, observed that if ultimately the final order passed under sub-rule (5) is questioned in a writ petition or a suit and ultimately the assessee succeeds, the refund claim which arises as a consequence of such decision would be covered by Section 11B. The present case is not a case of any adjustments in the payment of excise duty made under sub-rule (5) of Rule 9B. The refund claim does not appear to be a claim arising under Rule 9B(5). It is an independent claim for refund on the basis of Notification 71/78, dated 1st March, 1978. The appellants challenged the rejection of their claim for refund right upto CEGAT and filed a writ petition before the Andhra Pradesh High Court also. Therefore, the provisions of Section 11B are attracted and the appellants are governed by the ratio of Mafatlal Industries's case 1996 (12) TMI 50 - SUPREME COURT OF INDIA
Issues:
Claim for refund of excise duty, applicability of Rule 11 of Central Excise Rules, challenge to vires of Section 11B of Central Excises and Salt Act. Analysis: The appellants, engaged in manufacturing liquid pure carbon dioxide, sought exemption from excise duty under Notification No. 71/78. The classification list filed by the appellants was initially disputed, but later approved by the Government of India. However, their claim for refund of duty paid from 1-4-1978 to 25-7-1978 was rejected as time-barred under Rule 11 of the Central Excise Rules, 1944. The Collector (Appeals) and the Central Excise and Gold Control Appellate Tribunal (CEGAT) upheld this decision, leading to the appellants filing a Writ Petition before the Andhra Pradesh High Court. The High Court dismissed the writ petition, prompting the appellants to challenge the vires of Section 11B of the Central Excises and Salt Act. The appellants argued that their claim for refund was not time-barred as their classification list had not been approved when the refund claim was filed. They relied on a previous Supreme Court decision stating that limitation under Rule 11 commences only from the date of final assessment. The Court noted that the appellants needed to establish whether the duty payments were provisional and followed Rule 9B procedures. The appellants contended that Section 11B would not apply to their case, citing a Supreme Court decision on provisional assessments under Rule 9B. The Court clarified that adjustments under Rule 9B(5) are not governed by Section 11A or Section 11B, but if a final order is challenged and the assessee succeeds, the refund claim would fall under Section 11B. As the present case involved an independent claim for refund based on a notification, Section 11B was held to be applicable. In conclusion, the Court ordered in favor of the appellants, directing them to establish the provisional nature of duty payments and follow the prescribed procedures. The appeal was disposed of accordingly, with no order as to costs.
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