Case Law Details
India Gelatine & Chemicals Ltd. Vs C.C.E. & S.T. (CESTAT Ahmedabad)
In the instant case there is no finalization of Provisional assessment and there is no challenge to any such assessment, in these circumstances the refund would not be governed by provisions of Rule 9 B.
The appellant has claimed that the lower authorities have examined the refund in terms of Section 11B in as much as they had examined that there was unjust enrichment as well as limitation. The Learned Commissioner (Appeals) in his order has rightly stated that the test for unjust enrichment was done in terms of the direction of the Tribunal in its order A/596/WZB/05/CI/EB dated 03.10.2005. It is also noticed that proceedings arising out of filing of refund claim culminated with presumed finalization of provisional assessment as concluded in the order of Deputy Commissioner dated 05.03.2008 while granting part of the refund claim. Thereafter on 01.05.2008 the appellant instead of challenging the said order in original filed a fresh claim for refund of interest. Relying on the CBEC Circular No 670/61/2002-CX/1 dated 01.10.2002. Another SCN was issued wherein it was held that the refund arising on account of finalization of provisional assessment under Rule 9 B are not governed by the provisions of section 11B. It is seen that this view is in harmony with the observation of Hon’ble Apex Court in the case of Maftlal Industries (Supra).In this regard the observation of the jurisdictional High Court in the case of Contemporary Packaging Technologies P Ltd.(Supra) also becomes relevant wherein it is categorically observed that the provisions of Section 11B of the Central Excise Act would not govern the grant of refund claims arising on account of finalization of provisional assessment under rule 9B of Central Excise, 1944.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
This appeal has been filed by M/s Indian Gelatin Chemicals against denial of interest on the refund claim sanctioned to the appellant.
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