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TMI Blog2017 (1) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B of the Central Excise Rules, 1944. Therefore, the lower authorities rightly rejected the refund claim as time barred - appeal rejected - decided against Appellant. - Ex. Appeal No.70784/13 - FO/A/75025/2017 - Dated:- 10-1-2017 - Shri P. K. Choudhary, Judicial Member Shri B. N. Chattopadhyay, Consultant for the Appellant Shri S. Mukhopadhyay, Supdt. (A.R.) for the Revenue ORDER Per: Shri P. K. Choudhary The brief facts of the case are that the appellant availed the cenvat credit on the inputs for manufacture of dutiable as well as exempted finished goods. They paid an amount equal to 10% of the value of the exempted goods at the time of clearance from their factory. Subsequently, they filed a refund claim on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 6 of the Cenvat Credit Rules, 2004. The Commr. (Appeals), after following the decisions of the Hon ble Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of India : 1997 (89) ELT 247 (SC), held that all claims for refund except where levy is held to be unconstitutional are to be preferred and adjudicated upon under Section 11B of Central Excise Act, 1994 or under Section 27 of the Customs Act, 1962. Hence, the refund claim would be treated as filed under Section 11B of the said Act. 4. The ld.Counsel on behalf the appellant submitted that since it is not duty and the amount was paid by mistake, it would not come within the purview of Section 11B and the Revenue cannot retain such amount. He relied upon the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be determined with reference to other provisions in the Constitution. 17 . We must, however, pause here and explain the various situations in which claims for refund may arise. They may arise in more than one situation. One is where a provision of the Act under which tax is levied is struck down as unconstitutional for transgressing the constitutional limitations. This class of cases, we may call, for the sake of convenience, as cases of unconstitutional levy . In this class of cases, the claim for refund arises outside the provisions of the Act, for this is not a situation contemplated by the Act. 18. Second situation is where the tax is collected by the authorities under the Act by mis-construction or wrong interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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