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TMI Blog2009 (12) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... efund claimed by the appellant was within the period of time stipulated there for under Section 11-B of the Central Excise Act, 1944 (hereinafter referred to as the "1944 Act"). Section 11-B of the 1944 Act is being extracted hereunder for the facility of reference: "11-B. Claim for refund of duty. - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12-A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991), such application shall be deemed to have been made under this sub-section as am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette. Explanation. - For the purposes of this section, - (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for adjudicating the issues arising in the present controversy is sub-clause (eb) of clause (B) of the explanation under Section 11-B of the 1944 Act. The aforesaid sub-clause stipulates that in a case, where duty of excise is paid provisionally, a claim for refund thereof can be made within one year after the final assessment of excise duty. 3. Admittedly, 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. However, if the payment of excise duty was provisional, in which eventuality the period of limitation would be determinable from the date when the rate at which the goods were sold attained finality, then the claim of refund made by the appellant would be within the time prescribed. 4. During the course of hearing of the instant appeal, it was not a matter of dispute between the learned counsel for the rival parties that the answer to the issue, whether the excise duty was paid provisionally or not, would emerge from the interpretation of Rule 9B of the Central Excise Rules, 1944 (hereinafter referred to as the "1944 Rules"). It is, therefore, that Rule 9B, aforementioned, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or home consumption or export in the same manner as the goods which are so assessed. (5) When the duty leviable on the goods is assessed finally in accordance with the provisions of these rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of, or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be. Provided that, if an assessee is entitled to a refund, such refund shall not be made to him except in accordance with the procedure established under sub-section (2) of Section 11B of the Act. (6) Notwithstanding the provisions of self-assessment in this rule, in cases of provisional assessment, the final assessment shall be made by the proper officer." 5. A perusal of Rule 9B of the 1944 Rules leaves no manner of doubt in our minds, that provisional assessment of excise duty is permissible only in a situation, where the assessee makes a request to the proper officer in writing requiring him, for reasons to be recorded, why he desires to pay excise duty provisionally and thereupon, the proper officer authorises the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was made to some documents available on the file of the instant appeal depicting that the price, on the basis of which excise duty was being paid by the appellant, was provisional. Some other documents, on which reliance was placed, had been issued by the Excise Department, itself, while considering the claim of the appellant for refund. In the orders brought to our notice, the Excise Department had declined to consider the claim of the appellant for refund, asserting that, the price on the basis of which excise duty had been paid by the appellant, had not attained finality. Thus suggesting, that it was still provisional. Some other documents were brought to our notice, wherein, while assessing the claim of the appellant to differential excise duty, it was impliedly accepted in the columns of the proforma, that the deposit of excise duty by the appellant was provisional. 9. Having considered the legal proposition emerging from Section 11-B of the 1944 Act, and Rule 9B of the 1944 Rules, we are satisfied that none of these documents are material for determining the issue whether excise duty deposited by the appellant was provisional or not, as there are only two contingencies, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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