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TMI Blog2009 (10) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... not approved till Sept., 91 and therefore, pending the finalization of the classification list, the assessment was provisional and hence the provisions of Section 11B of the said Act, which relates to the principles of unjust enrichment were not attracted and this aspect was totally ignored by the authorities below while passing the impugned order. Secondly, it is a case of the appellants that the evidence produced in the form of the customer s affidavit and the certificate of the Chartered Accountant were not analysed in proper prospective and therefore, the rejection of the claim for refund was without taking into consideration the evidence on record and hence the impugned order in that regard should not be sustained. 3. Few facts relevant for the decision are that the appellants were engaged in the manufacture of various products and in the process of manufacture thereof, the products like Lead Ash, Zinc Ash and Zinc Dross were emerging. During the period from April, 88 to July, 91, the appellants had filed three classification lists while claiming exemption benefit under Notification No. 19/88-C.E., dated 1-3-88. Since 15-7-91 the said notification was amended whereby the ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing for the appellants while fairly admitting that the appellants had not specifically raised the said point before the lower authority submitted that during the pendency of finalization of the classification list, the assessment could not be held to have been finalized and therefore, it was provisional and consequently, there was no occasion for applying the principles of unjust enrichment contemplated under Section 11B. Drawing our attention to the fact that the classification list for the period prior to August, 1991 was finalized only in September, 1991, she submitted that it is apparent that the assessment could not be held to be final till the approval of the classification list and in that regard she placed reliance in the decisions in the matter of Rajeev Mardia v. CCE, Indore reported in 2001 (129) E.L.T. 334 (Tri.-LB), Hindustan Metal Pressing Works v. CCE, Pune reported in 2003 (153) E.L.T. 11 (S.C.) and Mafatlal Industries Ltd. v. UOI reported in 1997 (89) E.L.T. 247 (S.C.). She further submitted that taking into consideration the law laid down by the Apex Court in Mafatlal Industries Ltd. case and Larger Bench of the Tribunal, the payment made provisionally during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law in that regard is well settled by the Hon ble Supreme Court in Mafatlal Inds. Ltd. case. 6. It was also sought to be argued on behalf of the appellants that in case the evidence produced by the appellants in the form of certificates was either not sufficient or there was any doubt about genuineness thereof, the Department could have either summoned the concerned customers or could have directed the appellants to produce further evidence in that regard or could have itself investigated into the matter. Failure on the part of the Department in that regard could not be a justification to reject the claim of the appellants. 7. When the matter had come up before the Tribunal in the first round of litigation and the Tribunal on setting aside the order passed by the lower authorities had remanded the matter, while observing that An affidavit for non-realization of duty from buyers, filed by the manufacturer, is not sufficient to hold that the burden in such a situation has been discharged by the respondents. The documentary evidence and gate passes were required to be examined by him before holding that the duty burden had not been passed on by the respondents to its buyers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we do not find substance in the contentions sought to be raised in that regard. 8. In Hindustan Metal Pressing Works case, the Apex Court had held that refund of the excise duty which was paid in excess was granted in 1989 and thereafter sub-section (2) of Section 11B was incorporated in the said Act. Sub-section (2) of Section 11B which disentitled the refund on the ground of applicability of the principles of unjust enrichment came into force w.e.f. 20-9-91. In those circumstances, the Apex Court has observed that there is basic error in approach by the authorities below as the assessee has not filed any application under Section 11B of the Act for refund of the excise duty paid by him. There is no question of application of principles of unjust enrichment as incorporated in Section 11B . 9. Obviously the ruling was on account of the fact that the refund order was passed in 1989 i.e. much prior to 20-9-91 and that therefore, there was no occasion for the party to make an application under Section 11B which came into force much after the order of refund. That is not the case in hand. Incidentally the refund claim was made in Dec., 91, much after 20-9-91. 10. In the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be construed to mean that the same by itself would amount to saying that the proceedings were deemed provisional assessment. In fact the observation by the Tribunal in Rajeev Mardia s case was in the context of ruling of the Apex Court in Samrat International case. In Samrat International s case, the Apex Court had held that 9. This is the scheme for the payment of duty for clearance of goods by the manufacturers. This procedure is known as self-removal procedure. There will be no time bar for refund if the duty is paid under protest. The period of 6 months is prescribed in other cases. As we have already seen, Section 11B says that the period of 6 months in a case where duty of excise is paid provisionally under this Act or the rules made therunder, the date of adjustment of duty after the final assessment thereof . In this case, the classification list filed by the appellant for the period 1-4-85 to 27-4-85 was not approved till 3-6-85. From the provisions of Rules 173B, 173C and 173CC, which we have set out earlier, it will be seen that clearances can be made only after the approval of the list by the particular officer. However, if there is likely to be delay in accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisional assessment in situations specified in Clauses (a), (b) and (c) of sub-rule (1). 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 finally assessed. Sub-rule(5) provides that 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 . Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of such provisional classification. In the absence of the same, we cannot accept the argument of the Revenue that in fact the order of the Assistant Collector dated 21-1-76 is a provisional order based on which clearance was made by the appellants or that they paid duty on that basis. On the contrary, as held by the Judicial Member the said order of classification was a final order, therefore, the Revenue cannot contend the limitation prescribed under Section 11A does not apply . 16. Being so, the contention that pendency the finalization of classification list would automatically result in the assessment being provisional and being so the principles of unjust enrichment would never be attracted while dealing with the claim for refund in such circumstances cannot be accepted. 17. The contention about the non-applicability of the provisions of Section 11B on the ground that the refund claim relates to the period prior to 25-7-91 also cannot be accepted. In view of clear ruling in that regard by the Apex Court in Mafatlal Industries case it was clearly held that Reasonably construed and read together, the said provisions mean that in respect of pending applications, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of the so called certificate by the Chartered Accountant and a person alleged to be the buyer. In that regard, the original authority while analyzing the materials in this regard has held that as far as the certificate issued by the Chartered Accountant is concerned, the same appears to be issued on the basis of invoices issued by the Branch Office of the assessee which did not disclose separately the amount of Central Excise Duty paid on the goods. Obviously the amount of Central Excise Duty paid on the goods had not been shown separately because it was included in the price of goods itself and hence there was no question of payment of Central Excise Duty by the buyer to the assessee/appellant over and above the price of goods but it was paid along with the price of goods itself as the price of the goods itself included the excise duty, in those circumstances, the certificate issued on the basis of such invoices cannot be relied upon. Indeed in the absence of duty element disclosed separately one fails to understand as to on what basis even the buyer could say that he had not paid the duty element to the appellants while purchasing the product. 20. Referring to the gate passe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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