9911796707
TMI Blog2009 (12) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... and Service Tax Appellate Tribunal (hereinafter referred to as the "Tribunal") dated 12-4-2005, whereby the appeal preferred by the appellant before the Tribunal, seeking refund of excise duty, allegedly deposited provisionally, was dismissed. A perusal of the impugned order reveals that the same was declined on account of the fact that the claim had been made by the appellant beyond the period stipulated therefor. 2. In view of the above, the solitary question that arises for our determination is, whether the appellant had really deposited excise duty provisionally, and, in case the answer to the aforesaid is in the affirmative, whether the aforesaid refund 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government, the incidence of duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal of any Court in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpt from payment of duty by a special order issued under sub-section (2) of Section 5-A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any Court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty." The provision applicable 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 limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner may permit the assessee to enter into a general bond in the proper form with such surety or sufficient security in such amount or under such conditions as the Commissioner approves for assessment of any goods provisionally from time to time : Provided that, in the event of death, insolvency or insufficiency of the surety or where the amount of the bond is inadequate, the Commissioner may, in his discretion, demand a fresh bond and may, if the security furnished for a bond is not adequate, demand additional security. (4) The goods provisionally assessed under sub-rule (1) may be cleared for 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 proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein provisional assessment of excise duty is conceived of, under Rule 9B of the 1944 Rules, there is no other provision, whereunder the appellant could have been permitted to make a payment of excise duty provisionally. In fact, no other alternative, emerging from the aforesaid statutory provisions, was suggested even by the learned counsel for the appellant. 8. It would be unfair to the learned counsel for the appellant if one do not take into consideration a submission advanced by him based on a number of documents available on the record of this case. It would be pertinent to mention that reference 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
