TMI Blog2014 (9) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944 - Held that:- assessment in the case of the first respondent/assessees was not provisional. In this regard, the assessees’ letter dated March 25, 1999 addressed to the Assistant Commissioner of Central Excise, Chrompet Division acknowledging the receipt of provisional Assessment order for the financial year 1997-98 stated that such provisional assessment has been resorted to for price variation clause contained in the contract received from Oil Corporations and further stated that they have been paying the differential duty whenever required at the time of raising the supplementary invoices and approaching the Range Officer, Palavakkam requesting issuance of 57(E) certificate for differential duty payment. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the circumstances of the case, the 2nd respondent is right in upholding the order of the Appellate Authority, which ordered finalisation of provisional assessment under Rule 9B of Central Excise Rules, 1944 and also pursuing refund claim thereafter, as the 1st respondent had not requested for provisional assessment for the relevant period, as envisaged in Section 11B of Central Excise Act, 1944? 2. We have heard Mr. P. Mahadevan, learned Senior Central Government Standing Counsel appearing for the appellant/Central Excise Department. Though the assessees have been served and their name printed in the cause list, none appears for the 1st respondent/assessees. 3. The first respondent/assessees are manufacturers of LPG Cylinders and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laims holding that the respondent/assessee had not sought an order for provisional assessment and indicated the actual duty paid by them in the invoice and had self-assessed the RT-12 returns finally and that apart, the claim for refund was barred by limitation. Further, the Adjudicating Authority observed that the incidence of duty has been passed on to their customers by indicating the duty paid in their invoices and the price of LPG Cylinder was not finalized till the date of passing the Order-in-Original and hence the claim of the assessee that they have paid excess duty is not tenable. Aggrieved by such Orders-in-Original dated 3-7-2002, the first respondent/assessees preferred appeal to the Commissioner of Central Excise (Appeals). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the claim for refund made by the first respondent/assessees could be entertained when they have filed refund claim beyond the period of one year from the relevant date as mentioned under Section 11B of the Central Excise Act. 7. Firstly, it is to be noted that the assessment in the case of the first respondent/assessees was not provisional. In this regard, the assessees letter dated March 25, 1999 addressed to the Assistant Commissioner of Central Excise, Chrompet Division acknowledging the receipt of provisional Assessment order for the financial year 1997-98 stated that such provisional assessment has been resorted to for price variation clause contained in the contract received from Oil Corporations and further stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such duty had not been passed on by him to any other person. Second proviso provides that the limitation of one year stipulated under Section 11B, shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. Explanation 5 to Section 11B defines relevant date as under :- (B) relevant date means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods,- (i) ... (ii) ... (iii) ... (b) ... (d) ... (e) (ea) ... (eb) in case where duty of excise is paid provisionally under th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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