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TMI Blog2015 (2) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant date will be the date of adjustment of the duty after final assessment made thereof. In this case, consequent to the order of the Commissioner (Appeals), the refund claim was made. Therefore, it is clear that the date is well within the time stipulated under Section 11B and there can be no dispute raised by the Department on this aspect. Accordingly, the first substantial question of law becomes totally irrelevant and does not require to be answered. Refund claim in this case was made much prior to the addition of the proviso in sub-rule (5) of Rule 9B. On the date on which the refund claim was made, the law applicable was the law as declared by this Court in Mafatlal Industries Ltd. (1996 (12) TMI 50 - SUPREME COURT OF INDIA) which we have reproduced above. However, it is contended by the learned counsel Shri Verma for the department, that the claim of refund would be governed by the proviso introduced in sub-rule (5) of Rule 9B, and that as a consequence, the restrictions in Section 11A and Section 11B with regard to the procedure for refund would apply to the case of the respondent. The same question came up for consideration of this Court in Sinkhai Synthetics & Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apter 30 of the First Schedule to the Central Excise Tariff Act, 1985. The assessee cleared products as Ayurvedic medicine falling under Chapter 3003.30 of the Central Excise Tariff Act and paid excise duty at 8%. The Department, however, classified the product as skin care preparation falling under 3304 of the Central Excise Tariff Act and duty chargeable at 30%. The Assistant Commissioner of Central Excise, by Order-in-Original No.81/97 dated 30.12.97 finalised the issue and held that the goods fall under Chapter 3304 as stated in the show cause notice and demanded differential duty. The respondent/assessee, it appears, filed revised declaration classifying the product under Chapter 3304 and paid differential duty of 22% under protest. 3. The respondent/assessee preferred appeal against the order of adjudication and the Commissioner (Appeals) set aside the order of the original authority in Appeal No.140/98 (M-1) dated 21.8.98 and held that the product is classifiable under Chapter sub-heading 3003.30 as Ayurvedic medicine. Immediately thereafter, on 21.9.98, refund application was filed, i.e., to say within one month from the date of the order of the Commissioner (Appeals). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made to Explanation (B) and clause (eb) to Section 11B of the Central Excise Act, which are extracted hereunder :- Section 11B. 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 the 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 12A) 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, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (5) to Rule 9B is not retrospective in operation. In the said decision, the Supreme Court held as under :- In Mafatlal Industries Ltd (supra) a Bench of nine learned Judges of this Court held that refund claims consequent upon the adjustment under sub-rule (5) of Rule 9B would not be governed by the restrictions of Section 11A or Section 11B, as the case may be. This Court observed (vide paragraph 104) as under: Rule 9-B provides for provisional 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not get defeated by the subsequent amendment made in sub-rule (5) of Rule 9B. The Commissioner of Central Excise and the CEGAT were, therefore, justified in holding that the claim for refund made by the respondent had to be decided according to the law laid down by this Court in Mafatlal Industries Ltd. (supra) and would not be governed by the proviso to sub- rule (5) of Rule 9B. In the result, we find no merit in appeal. The appeal is accordingly dismissed. However, there shall be no order as to costs Civil Appeal Nos. 2891/2001, 8380/2001 and 610-611/2002. In all these appeals the question which arises for our consideration is identical. The refund claims were made pursuant to the finalisation of provisional assessment orders and prior to 25.6.1999, i.e. the date on which the proviso to sub-rule (5) of Rule. 9B came into force. In our view, therefore, all these cases would be governed by the rule in Mafatlal Industries Limited (supra) namely that the restrictions in Section 11A and Section 11B would not apply to refund claims consequent upon finalisation of provisional assessment orders. 13. A reading of Section 9B (5) coupled with the judgment of the Supreme Court in TV ..... X X X X Extracts X X X X X X X X Extracts X X X X
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