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TMI Blog2023 (10) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... not in dispute that the refund claim has been filed within the period of limitation as prescribed under the provision of Section 11B. The revenue has raised the objection that in view of the judgment of the Hon ble Apex Court in the case of COLLECTOR OF CENTRAL EXCISE, KANPUR VERSUS FLOCK (INDIA) PVT. LTD. [ 2000 (8) TMI 88 - SUPREME COURT] unless the self-assessment is altered by way of an appeal, refund claim is not maintainable - On going through the judgment of the Hon ble Apex Court in the case of Flock India Pvt. Ltd., it is found that in that case there was a classification dispute and the classification filed by the assessee was changed by the Assistant Commissioner of Central Excise leading to levy of higher duty of exercise. It is found that even the case of Hon ble Apex Court of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [ 2019 (9) TMI 802 - SUPREME COURT] is also not applicable in the facts of the present case because the said case was under provision of Customs Act, 1962 where the provisions are different from that of Excise Act and service tax. The impugned order is not sustainable in law and the same is set aside - Appeal allowed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of the goods supplied to BHEL. 7. He further submitted that the appellant did not charge the excise duty amounting to Rs. 55,02,800/- from its customer. He further submitted that when exempted character of supply of goods to the project is not disputed and also the payment of excise duty amounting to Rs. 55,02,800/- paid erroneously for such supply is not disputed by the Revenue, then the only course available with the appellant was to file refund claim thereof, which he did. He further submits that in case any tax has been paid by reason of error or mistake, rejection of refund is without the authority of law especially when the refund claim has been filed well within the time period prescribed under the provisions of Section 11B of the Central Excise Act, 1944. In support of his submissions, he relied upon the following decisions. 2010 (256) ELT. 232 (P H) INDIAN OIL CORPORATION LTD. Versus COMMISSIONER OF C.EX., NEW DELHI CESR No. 3 of 2007, decided on 27-4-2010 Refund-Limitation Payment of duty made on HSD cleared to bonded warehouses-Refund application filed when pointed out by Assistant Commissioner - Application rejected as same filed beyond 6 month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad no occasion to avail Cenvat credit Rejection of letter neither just nor fair-Assessee entitled to refund - Section 118 of Central Excise Act, 1944 8. On the other hand, Ld. DR reiterated the findings of the impugned order and submitted the written submissions in support of his submissions. He further submitted that the refund claim filed by the appellant is not maintainable in the absence of any challenge of assessment or self-assessment in appeal as held by the Hon ble Apex Court in the case of Collector of Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd reported in 2000 (12) E.L.T. 285 (S.C.). 9. Ld. DR also relied upon the decisions of the Hon ble Apex Court in the case of ITC Ltd. Vs. Commissioner of Central Excise, Kolkata-IV reported in 2019 (368) E.L.T. 216 (S.C.). He further submitted that the self-assessment made by the appellant on the basis of which duty was paid with the department gained finality being not challenged by the appellant despite being an order of assessment as per law, the same cannot be opened and permitted at the stage of refund claim. 10. He further submitted that refund sanctioning authority has no jurisdiction/authority under Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down filing of refund claim of any duty under the provisions of Section 11B of the Act, the statutory provisions cannot be over-stretched so as to debar filing of refund claim of the self-assessed duty. 14. Ld. Counsel, further submits that revenue has wrongly relying upon the decision of the Hon ble Apex Court in the case of Flock (India) Pvt. Ltd, cited (Supra), the facts of the said case are not applicable to the present case in as much as in the Flock India case, the assessee had filed classification list under Rule 173B of the Central Excise Rules, 1944, which was duly approved by the Assistant Commissioner of Central Excise changing the classification declared by the assessee leading to levy of higher duty of exercise. However, subsequent to approval of classification list, the assessee filed refund claim without challenging the approval of classification. It is in this context that the Hon ble Apex Court held that in the absence of having challenged the earlier adjudication order (i.e. approval of classification), refund claim was not maintainable. 15. He further submits that in the present case, neither any classification list was filed nor it was approved by any aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute and the classification filed by the assessee was changed by the Assistant Commissioner of Central Excise leading to levy of higher duty of exercise. 20. Subsequently, the assessee filed refund claim without challenging the approval of the classification, it was in this context that the Hon ble Apex Court held that in the absence of having challenged the earlier adjudication order (approval of classification) refund claim was not maintainable. But in the present case, the said judgment is not applicable because in the present case neither any classification list was filed nor it was approved by any authority of Central Excise, therefore, the ratio of the judgment of the Hon ble Supreme Court is not applicable to the present case. 21. Further, we find that even the case of Hon ble Apex Court of ITC Ltd. cited (Supra) is also not applicable in the facts of the present case because the said case was under provision of Customs Act, 1962 where the provisions are different from that of Excise Act and service tax and recently the Larger Bench of this Tribunal in the case of M/s Shree Balaji Warehouse and others vide order dated 29.09.2023 this Tribunal by majority has held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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