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TMI Blog2021 (12) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant - principles of equity - HELD THAT:- It is not in dispute that, in the case on hand, the claim for refund is made beyond one year from the date of payment of duty by the appellant as stipulated by Explanation (f). As rightly held in the orders under appeal, explanation (eb) is not attracted to the facts and circumstances of this case. The period of limitation since being a mixed question of law and fact, the decisions which have been rendered in different circumstances are not applicable to the issue involved in this case and are clearly distinguishable. The questions are answered against the appellant and in favour of respondent - Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... s is as suggested by Indian Electronics and Electrical Manufacturers Association (for short 'IEEMA') from time-totime. The appellant states that, prior to 2009 the prices of transformers were subjected to upward revision as compared to the initial price indicated in the contract or the price indicated at the time of raising the invoices. In such a situation, the appellant was getting additional consideration from its buyers on account of the price variation clause and appellant has been crediting differential excise duty on such differential amount to the Department. In the instant circumstances, on 05.03.2011 the price has been revised downwards by the Kerala State Electricity Board (KSEB). The appellant, due to downward revision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond the control of the appellant so as to grant justice based on principles of equity." 4. Mr George Varghese contends that rejecting the claim of appellant by referring to Section 11B read with Explanation (f) of Section 11B is completely illegal and unsustainable. According to him, the case of appellant ought to have been considered under Explanation (eb) to Section 11B of the Act. The starting point, according to him, would arise only when the final assessment has been made by the authority. He fairly states that, in the case on hand, there is no final assessment and as long as there is no final assessment, according to his argument, the starting point has not commenced. Therefore, the findings recorded both by the Tribunal and the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case on hand, the effort of appellant is to bring its case within the fold of Explanation (eb) to Section 11B of the Act. According to him, Explanation (eb) has no application inasmuch as there is no final assessment made by the Department for the subject period. According to him, the argument of the appellant if is accepted, then, in the absence of a final assessment, the limitation is infinitely or indefinitely extended. He argues that Explanation (f) is applicable inasmuch as it is the date of payment of duty that is attracted for claiming refund of excess duty paid by the appellant. 6. We have taken note of the arguments addressed by both the counsel. Firstly, we are of the view that the arguments now put forward by the appellant are s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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