9911796707
TMI Blog2011 (5) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... being duty paid by the petitioner under protest, alongwith interest @ 18%. 2. The petitioner No.1, a private limited company, (hereinafter referred to as the 'petitioner company') is inter alia engaged in the activity of manufacture of steel forgings. During the relevant period, that is, 1986-87, the petitioner company had filed Classification List for its products 'Roughly Shaped Forged Articles of Steel', with effect from 18th November, 1986 under Sub-Heading 7208.00 of the Schedule to the Central Excise Tariff Act, 1985. Taking recourse to the provisions of rule 173B(5) of the Central Excise Rules, 1944 (the Rules), the Assistant Collector of Central Excise, Rajkot by an order dated 26th June, 1987 unilaterally modified the Classification List filed by the petitioner company under S.H. 7208.00 and classified the same under S.H. 7308.90 attracting 15% ad valorem duty. In view of the modification of the Classification List filed by it, the petitioner company addressed a letter dated 3rd July, 1987 to the Superintendent of Central Excise, wherein it was stated that since the petitioner company intended to prefer an appeal against the order of the Assistant Collector modifyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egards classification attained finality by the decision of the Supreme Court, the assessment/approval was provisional for the said period. It is further the case of the petitioner company that in view of the aforesaid factual background, the respondent authorities ought to have refunded the amount of duty paid under protest. However, the respondent authorities did not do so. The petitioner company, therefore, by a letter dated 23 rd December, 2002 addressed to the respondent No.3 requested to refund the said amount. However, no heed was paid by the said authority. In response to the said letter dated 23rd December, 2002 addressed by the petitioner company, the petitioner company received a letter dated 13th January, 2003 addressed by the respondent No.3 asking for certain details namely classification list, letter of protest and statement showing the amount of duty payable and paid during the said period. By a letter dated 31st January, 2003, the petitioner company supplied all the details asked for by the above referred letter including the statement showing the amount to be refunded to the petitioner company which according to the petitioner was Rs.38,87,472.72. According to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y determined by the Supreme Court in favour of the petitioner company, the assessment continued to be provisional and upon its approval in favour of the petitioner company, it became entitled to the said refund as a consequence of final assessment/determination of classification of the product in question. It was submitted that the assessment continued to be provisional till the classification in favour of the petitioner came to be decided by the Supreme Court and, therefore, evidently the bar of unjust enrichment would not come in the way of the petitioner company's claim for refund. Reliance was placed upon the decision of this Court in the case of Commissioner of Customs vs. Hindalco Industries Ltd., 2010 (262) E.L.T. 106 (Guj.) for the proposition that the provisions of section 11B of the Act would not apply to refunds arising on finalization of provisional assessments. Reliance was also placed upon the decision of the Supreme Court in the case of Sinkhai Synthetics and Chemicals (P) Ltd. vs. Commissioner of Central Excise, (2002) 9 SCC 416 for the proposition that when the petitioner has paid duty under protest, the bar of unjust enrichment would not apply. 7. Opposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is entitled to refund of the excise duty paid under protest without considering the applicability of the provisions of the Act and secondly as to whether the assessment of the petitioner continued to be provisional till the classification came to be finally determined by the Supreme Court in favour of the petitioner company. 9. A perusal of the judgment and order dated 31st December, 1987 passed by this Court in Special Civil Application No.4109 of 1987 shows that the Court had taken note of the fact that the show cause-cum-demand notice had been issued to the petitioners on 16th July, 1987 and that the petitioners had paid the excise duty under protest. The Court, therefore, partly allowed the petition observing that as the petitioners had paid excise duty under protest, the respondents will have to refund the same in case the classification list submitted by the petitioners on 18th November, 1986 classifying the products as falling under Item No.7208.00 is approved by the proper officer. 10. Section 11B of the Central Excises and Salt Act, 1944 as it stood at the relevant time insofar as the same is relevant for the present purpose reads thus:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redited to the Fund, be paid to the applicant, if such amount is relatable to- 1. 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 ; 2. unspent advance deposits lying in balance in the applicant's account current maintained with the Collector of Central Excise; 3. refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; 4. duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; 5. the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; 6. the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further that no 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) Notwith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 3. where an assessee has produced all the necessary documents and furnished full information for the assessment of duty, but the proper officer deems it necessary to make further enquiry (including the inquiry to satisfy himself about the due observance of the conditions imposed in respect of the goods after their removal) for assessing the duty, 4. the proper officer may, either on a written request made by the assessee or on his own accord, direct that the duty leviable on such goods shall, pending the production of such documents or furnishing of such information or completion of such test or enquiry, be assessed provisionally at such rate or such value (which may not necessarily be the rate or price declared by the assessee) as may be indicated by him, if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such conditions as the proper officer deems fit, binding himself for payment of the difference between the amount of duty as provisionally assessed and as finally assessed. (2) * * * *] (3) The Collector may permit assessee to enter into a general bond in the proper Form with such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper form as contemplated under rule 9B of the Rules. Thus, as to whether the petitioner has been assessed provisionally is primarily a question of fact. The learned advocate for the petitioner is not in a position to point out from the averments made in the petition or the supporting documents, that the provisions of rule 9B of the Rules have been complied with. In the impugned order, the respondent No.3 has specifically observed that there is nothing in the record that shows that the petitioner had opted for provisional assessment under rule 9B. It is also observed that the petitioner had not forwarded any evidence in this regard that it had opted for provisional assessment under rule 9B and completed the formalities such as execution of bond etc. in its written submission or during personal hearing. The respondent No.3, therefore, did not accept the case of the petitioner that this was a case of provisional assessment. Moreover, in the affidavit-in-reply filed on behalf of the respondents, there is a categorical averment to the effect that in the instant case, no provisional assessment has either been sought by the petitioners or ordered by the Department and as such, the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court in the case of Commissioner of Central Excise, Mumbai-II vs. Allied Photographics India Ltd. (supra) wherein, the issue before the court, interalia, was as to whether refund of duty paid under provisional assessment is similar to duty paid under protest as both are on-account payments adjustable on finalization of assessment or vacating of prote st. The Court, after considering the provisions of section 11B of the Act as amended as well as the provisions of rule 9B of the Rules held as follows: "14. As stated above, para 104 of the judgment in the case Mafatlal Industries Ltd. (supra) states that if refund arises upon finalisation of provisional assessment, Section 11B will not apply. Para 104 of the said judgment does not deal with payment under protest. In the light of what is stated herein, we may now consider the judgment of this Court in the case Sinkhai Synthetics and Chemicals Pvt. Ltd. (supra). In that matter, the assessee was a manufacturer. The assessee claimed exemption which was denied by the Department. The assessee went in appeal to CEGAT. Pending appeal, assessee paid excise duty under protest. The assessee succeeded before the CEGAT and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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