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2022 (4) TMI 728 - AT - Central ExciseDenial of interest on the refund claim sanctioned to the appellant - finalization of provisional assessment or not - rejection on the ground that the refund claim was allowed under Rule 9B of the erstwhile rule and not under section 11 B of the act and therefore there was no case for interest on the delayed refund since Rule 9 B of the erstwhile rule contained no such provisions for interest - HELD THAT:- The refund has been sanctioned on finalization of provisional assessment. The order granting refund sanctions refund under section 11B of the Central Excise Act, 1944 read with Rule 9B of Central Excise Rules, 1944. The appellant claims that since while sanctioning the refund Section 11B has been invoked, therefore in terms of Section 11 BB the appellant is entitled to interest for the delay in sanction of refund claim from the date of filing of refund claim. The facts of instant case are that while assessment was done provisionally on the direction of Hon’ble High Court, no order finalizing the provisional assessment has been passed. The appellant had filed the refund claim on 29.07.1998 after the Commissioner (Appeals) decided their appeal on 06.01.1998 and held that the goods are rightly classifiable under heading No. 2302 and charge to nil rate of duty - it is seen that in ordinary course of refund arising out of finalization of provisional assessment would be decided in terms of Rule 9B however if any refund arises on account of challenge to an order passed under Sub Rule (5 )of Rule 9 B then such demand or refund would be governed by section 11 A or Section 11 B as the case may be. 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. 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 MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT].In this regard the observation of the jurisdictional High Court in the case of CONTEMPORARY PACKAGING TECHNOLOGIES PVT. LTD. VERSUS UNION OF INDIA & 2 [2013 (8) TMI 577 - GUJARAT HIGH COURT] 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. The appeal is dismissed.
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