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TMI Blog2021 (2) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... date of finalization of price by customers to finalization of assessment? - HELD THAT:- Admittedly, the application for refund made by the appellant on 24.08.2006 was rejected by the Assistant Commissioner by an order dated 24.05.2007. Being aggrieved by the order of the Assistant Commissioner, the appellant filed an appeal before the Commissioner of Central Excise (Appeals). It is not in dispute that the Commissioner of Central Excise (Appeals), by an order dated 24.12.2007, set aside the order passed by the Assistant Commissioner and allowed the appeal preferred by the appellant. Therefore, under the order dated 24.12.2007 passed by the Commissioner of Central Excise (Appeals), the appellant became entitled to the amount of refund. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UDGMENT ALOK ARADHE J., This appeal under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as the Act , for short) has been filed by the appellant against the order dated 26.10.2016 passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal' for short). The appeal was admitted by a Bench of this Court vide order dated 25.09.2018 on the following substantial questions of law: (1) Whether on the facts and in the circumstances of this case, CESTAT was justified in allowing the appeal filed by the Department although the order-in-appeal dated 24.12.2007, which was under challenge before CESTAT, had been implemented by the Assistant Commissioner under adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on provisional basis. The oil companies finalized the prices vide circulars dated 31.10.2000 and 03.11.2000. The prices determined by oil companies resulted in fixation of lesser prices than the one which was adopted by the assessee. The appellant had infact paid excess duty to the Government to the tune of ₹ 31,91,496/- during the period from 01.07.1999 to 26.10.2000. 3. The appellant was pursuing the matter with the oil companies to reimburse the excise duty paid by them. Since the oil companies did not reimburse, the appellant filed an application for refund on 24.08.2006 before the Assistant Commissioner of Central Excise, Bengaluru seeking refund of amount of ₹ 31,91,496/-. Thereafter, a show cause notice dated 07.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year to claim refund will apply from the date of finalization of order of assessment by the Assistant Commissioner of Central Excise. Therefore, the Tribunal erred in considering the finalization of prices between the appellant and the oil companies as the relevant date for claiming refund as per Section 11B of the Act. 5. It is further submitted that the Tribunal ought to have appreciated that the order passed by the Commissioner of Central Excise (Appeals) dated 24.12.2007 was already implemented by the Assistant Commissioner of Central Excise vide order dated 04.02.2008 sanctioning the refund of the amount which was a fact admitted in paragraph 2 of the order passed of the Tribunal. It is further submitted that the Tribunal ought to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund was made, has been set aside by the Tribunal, therefore, the date has to be reckoned from the year 2006 to claim refund. In support of aforesaid submission, reliance has been placed on the decision of 'COMMISSIONER OF CENTRAL EXCISE, CHENNAI-IV Vs. SRI.BALAJI CYLINDERS (P) LTD.' (2014) 50 TAXMANN.COM 388 (MADRAS). 7. We have considered the submissions made on both sides and have perused the record. Admittedly, the application for refund made by the appellant on 24.08.2006 was rejected by the Assistant Commissioner by an order dated 24.05.2007. Being aggrieved by the order of the Assistant Commissioner, the appellant filed an appeal before the Commissioner of Central Excise (Appeals). It is not in dispute that the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid aspect of the matter has not been considered by the Tribunal and the Tribunal has proceeded to examine the validity of the order in relation to the first application which has been made by the appellant. It is also pertinent to mention here that even before an appeal was filed before the Tribunal, an order sanctioning the refund was already passed on 04.04.2008 and thereafter, an appeal was filed on 25.04.2008. 8. In view of preceding analysis, we answer the substantial question of law Nos.3 and 4 by holding that the Tribunal erred in considering the date of finalization of price between the appellant and their customers as relevant date in the light of Explanation B (ec) of Section 11 of the Act. The substantial question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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