9911796707
TMI Blog2016 (1) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared the goods on the basis of provisional assessment. On 7.7.98, the provisional assessments were finalized by allowing certain deductions claimed by the appellant which resulted in refund of 91.13 lakhs. The appellant was directed to file refund claim under section 11 B of Central Excise Act, 1944 on 31.7.1998. Consequent to that, appellant filed the refund claim on 11.8.1998 "without prejudice" basis under Rule 9B(5) of the Central Excise Rules, 1944 on the ground that appellant is not required to file refund claim under Rule 9B(5) of the Rules as per various judicial pronouncements. The Revenue preferred an appeal against the order of finalization of Assistant Commissioner of provisional assessment dated 7.7.1998 and the appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd claim was challenged by the Revenue before the learned Commissioner (Appeals) and who on 30.5.2001 held that appellant is entitled for refund of Rs. 72.28 lakh. During the relevant time, provisions of section 11B of the Act came into force in the light as per Notification No. 45/99-CE (NT) dated 25.6.1999. Therefore, appellant is entitled to claim interest after three months from 30.5.2001 as they have also filed refund claim on 11.8.1998. In these circumstances, he prayed that interest be given to them as per CBEC Circular No. 765/81/2003-CX. Dated 10.12.2003. 4. On the other hand, learned AR opposed the contention of the learned counsel and submits that at the time of filing the refund claim, the provisions of section 11B are not appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 1944, the provisions of section 11B of the Act were not attracted as held by this Tribunal in the case of Indian Dyestuff Industries Ltd.(supra) which has been affirmed by the Hon'ble Apex Court reported supra. But it is a fact on record that appellant has filed refund claim under section 11 B under the directions of departmental authorities. As per the decision of Hon''ble Apex Court in the case of Mafatlal Industries reported in [1997 (89) ELT 247 (SC)] which provides as under:- "95. Rule 9B 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B. Admittedly, in this case, the order dated 7.7.98 of finalization of provisional assessment was challenged by the Revenue before learned Commissioner (Appeals) which attained finality on 30.5.2001, therefore, refund claim is governed by section 11B of the Central Excise Act, 1944. At this stage, the learned Counsel for the appellant have conceded their claim of interest for the period prior to 30.5.2001. 8. As we have held that the refund claim is governed by section 11B of the Central Excise Act, 1944 as discussed hereinabove, in that circumstances, the appellant is entitled for interest on delayed refund after three months from the date i.e. 30.5.2001 when the claim of refund has attained finality till the refund claim was given to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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